Multistate Bar Examination (MBE) Torts Syllabus

Torts syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Torts in Multistate Bar Examination (MBE), not a summary of it.

1. 1

   Intentional Torts

   3 topics

   • Intentional Torts Against the Person
     • Battery and assault
     • False imprisonment
     • Intentional infliction of emotional distress
   • Intentional Torts Against Property
     • Trespass to land
     • Trespass to chattels and conversion
   • Defenses to Intentional Torts
     • Consent
     • Self-defense, defense of others, and defense of property
     • Necessity: public and private
2. 2

   Negligence

   5 topics

   • Duty of Care
     • Standard of care and the reasonable person
     • Special duties: professionals, children, common carriers
     • Duties to foreseeable plaintiffs (Palsgraf)
     • Affirmative duties to act and special relationships
   • Breach of Duty
     • Risk-utility and Hand formula
     • Negligence per se
     • Res ipsa loquitur
   • Causation
     • Actual cause: but-for and substantial factor
     • Proximate cause and foreseeability
     • Intervening and superseding causes
   • Damages
     • Compensatory damages and the eggshell plaintiff
     • Pure economic loss and emotional distress recovery
     • Duty to mitigate and collateral source rule
   • Defenses to Negligence
     • Contributory and comparative negligence
     • Assumption of risk
3. 3

   Strict Liability and Products Liability

   4 topics

   • Strict Liability
     • Abnormally dangerous activities
     • Liability for animals
   • Products Liability Theories
     • Negligence and warranty theories
     • Strict products liability
   • Types of Product Defects
     • Manufacturing defects
     • Design defects and the risk-utility test
     • Warning and instruction defects
   • Defenses in Products Cases
     • Product misuse and alteration
     • Comparative responsibility
4. 4

   Defamation and Privacy Torts

   4 topics

   • Defamation Elements
     • Libel and slander; slander per se
     • Publication and damages
   • Constitutional Limits on Defamation
     • Public officials and figures; actual malice
     • Private plaintiffs and matters of public concern
   • Defamation Defenses and Privileges
     • Truth and consent
     • Absolute and qualified privileges
   • Invasion of Privacy
     • Appropriation of name or likeness
     • Intrusion upon seclusion
     • False light
     • Public disclosure of private facts
5. 5

   Economic and Miscellaneous Torts; Shared Liability

   4 topics

   • Economic Torts
     • Intentional and negligent misrepresentation
     • Tortious interference with contract and prospective advantage
   • Nuisance
     • Private nuisance and substantial interference
     • Public nuisance
   • Vicarious Liability
     • Respondeat superior and scope of employment
     • Independent contractors and nondelegable duties
   • Multiple Defendant Liability and Immunities
     • Joint and several liability
     • Contribution and indemnity
     • Tort immunities

Torts flashcards for Multistate Bar Examination (MBE)

23 of 56 cards from the Torts deck — real questions with worked answers.

1. What are the elements of battery?

   (1) A harmful or offensive contact with the plaintiff's person, (2) caused by the defendant's act, (3) done with intent to cause such contact (or imminent apprehension of it). Offensiveness is judged by a reasonable-person standard. Contact with anything connected to the plaintiff (e.g., clothing, a held object) counts.

2. What are the elements of assault?

   (1) An act by the defendant creating a reasonable apprehension in the plaintiff of (2) an imminent harmful or offensive contact, (3) with intent to cause the apprehension (or the contact). Words alone are usually insufficient; apprehension is not the same as fear, and the contact threatened must be imminent.

3. What are the elements of false imprisonment?

   (1) An act or omission that confines or restrains the plaintiff to a bounded area, (2) with intent to confine, and (3) the plaintiff is conscious of the confinement or harmed by it. There must be no reasonable means of safe escape known to the plaintiff. Restraint may be by force, threats, or assertion of legal authority.

4. What are the elements of intentional infliction of emotional distress (IIED)?

   (1) Extreme and outrageous conduct (beyond all bounds of decency), (2) intent to cause severe emotional distress or recklessness as to it, (3) causation, and (4) severe emotional distress. It is the only intentional tort against the person requiring proof of actual damages (severe distress).

5. In tort law, what does the doctrine of 'transferred intent' allow?

   Intent transfers (1) from an intended victim to an actual victim, and (2) across torts. It applies among five torts: assault, battery, false imprisonment, trespass to land, and trespass to chattels. It does not apply to IIED or conversion.

6. What is the rule for IIED against a bystander who witnesses harm to a third person?

   A bystander plaintiff may recover by either (a) meeting the prima facie elements (showing the defendant's design or knowledge of the substantial certainty of distress), OR (b) showing the plaintiff was present, was a close relative of the injured person, and the defendant knew of the presence and relationship.

7. What are the elements of trespass to land?

   (1) Physical invasion of the plaintiff's real property (by a person or a tangible object), (2) with intent to enter that land (mistake about ownership is no defense). No damages are required. Intangible matter (e.g., noise, light) is addressed under nuisance, not trespass.

8. Distinguish trespass to chattels from conversion.

   Both involve intentional interference with personal property. Trespass to chattels is a minor interference (small damage or short dispossession); remedy is the cost of repair/rental. Conversion is so serious it warrants requiring the defendant to pay full value; remedy is full market value (a forced sale) or replevin.

9. What are the requirements for the defense of consent to an intentional tort?

   Consent may be express or implied (by custom or the plaintiff's conduct). The plaintiff must have capacity. Consent is invalid if obtained by fraud or duress, if induced by mistake the defendant caused or knew of, or if the defendant exceeds the scope of consent given.

10. What is the rule on degree of force permitted in self-defense?

    A person may use reasonable force proportionate to the threat. Deadly force is permitted only when one reasonably believes deadly force is being threatened against them. The modern/majority view imposes no duty to retreat before using deadly force; a minority requires retreat if safely possible (except in one's home).

11. When may a property owner use force to defend property, and what is the limit on mechanical devices?

    Reasonable, non-deadly force may be used to prevent a tort against property, after a request to desist (unless futile). Deadly force may never be used solely to protect property. A spring gun or trap may be used only where the owner could lawfully have used such force in person (i.e., not deadly to protect mere property) — Katko v. Briney.

12. What are the requirements of the 'shopkeeper's privilege' (privilege to detain for investigation)?

    A merchant may detain a suspected shoplifter if there is (1) a reasonable belief as to the theft, (2) the detention is conducted in a reasonable manner using only non-deadly force, and (3) the detention is for a reasonable period of time and only for purpose of investigation.

13. What are the requirements of the defense of necessity (and the public vs. private distinction)?

    Necessity is a defense to property torts when interfering with property to prevent greater harm. Public necessity (action for the public good) is an absolute defense — no liability. Private necessity (action to protect one's own interests) is a qualified defense — the actor is not liable for the trespass but must pay for any actual damage caused (Vincent v. Lake Erie).

14. What are the four elements of a negligence claim?

    (1) Duty — a legal obligation to conform to a standard of care; (2) Breach — failure to meet that standard; (3) Causation — actual (cause-in-fact) and proximate cause; and (4) Damages — actual harm/injury.

15. To whom is a duty of care owed under the majority (Cardozo) view versus the minority (Andrews) view?

    Majority/Cardozo (Palsgraf): a duty is owed only to foreseeable plaintiffs within the 'zone of danger.' Minority/Andrews: a duty is owed to everyone; if the defendant breaches a duty to anyone, the issue of foreseeability is handled under proximate cause.

16. What is the default standard of care in negligence, and how is it adjusted for physical disability, mental disability, and superior skill?

    The standard is the reasonably prudent person under like circumstances (objective). A physical disability is accounted for (reasonable person with that disability). Mental deficiencies and low intelligence are NOT accounted for. A defendant with superior skill/knowledge is held to that higher level.

17. Under the traditional common-law approach, what duties does a land possessor owe to undiscovered trespassers, discovered/anticipated trespassers, licensees, and invitees?

    Undiscovered trespasser: no duty. Discovered/anticipated trespasser: warn of/make safe known, concealed, artificial conditions involving risk of death/serious harm. Licensee (social guest): warn of known concealed dangers; no duty to inspect. Invitee (business/public): same as licensee PLUS a duty to make reasonable inspections to discover dangers.

18. What is the attractive nuisance doctrine and its elements?

    A land possessor may be liable for injuries to child trespassers from an artificial condition if: (1) the possessor knows or should know children are likely to trespass; (2) the possessor knows the condition poses an unreasonable risk of serious harm to children; (3) the children, due to youth, can't appreciate the danger; and (4) the burden of remedying the danger is slight compared to the risk.

19. What is the standard of care for a child, and what is the exception?

    A child is held to the standard of a child of like age, intelligence, and experience (a subjective standard). Exception: a child engaged in an adult or inherently dangerous activity (e.g., driving a car or motorboat) is held to the adult reasonable-person standard. Most courts hold children under 5 incapable of negligence.

20. What is negligence per se and what two requirements must a plaintiff meet to invoke it?

    Negligence per se borrows a statute's specific duty to establish the standard of care, so violation conclusively establishes duty and breach. The plaintiff must show: (1) she is a member of the class the statute was designed to protect, and (2) the harm is of the type the statute was designed to prevent. Excused violations (e.g., compliance was more dangerous) are recognized.

21. What duty, if any, does a person owe to act affirmatively to aid another, and what are the exceptions?

    General rule: no duty to act affirmatively to rescue or aid. Exceptions creating a duty: (1) a special relationship (parent-child, common carrier-passenger, etc.); (2) the defendant caused the peril; (3) the defendant undertook to rescue (must act reasonably); or (4) a statute/contract imposes a duty. Good Samaritan statutes shield gratuitous rescuers from ordinary negligence.

22. What is the Hand Formula for determining breach of duty?

    Breach exists when the burden of taking adequate precautions (B) is less than the probability of harm (P) multiplied by the gravity/magnitude of the loss (L): liability when B < P × L (United States v. Carroll Towing). It frames breach as an economic cost-benefit balance.

23. What are the elements/requirements for res ipsa loquitur?

    Res ipsa allows an inference of breach when: (1) the accident is of a type that does not ordinarily occur absent negligence, and (2) the instrumentality was in the exclusive control of the defendant (or negligence is attributable to the defendant) — and (3) the injury was not due to the plaintiff. Its effect is to get the plaintiff past a directed verdict (creates an inference, not a presumption).

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