NextGen Bar Exam 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 NextGen Bar Exam, not a summary of it.

1. 1

   Intentional Torts

   3 topics

   • Torts Against the Person
     • Battery, assault, and false imprisonment
     • Intentional infliction of emotional distress
   • Torts Against Property
     • Trespass to land and chattels
     • Conversion
   • Defenses to Intentional Torts
     • Consent and self-defense
     • Defense of property and necessity
2. 2

   Negligence

   4 topics

   • Duty of Care
     • Standard of care and the reasonable person
     • Duties to foreseeable plaintiffs
     • Special duties and landowner liability
   • Breach
     • Negligence per se
     • Res ipsa loquitur
   • Causation
     • Actual cause and the but-for test
     • Proximate cause and intervening forces
   • Damages and Defenses
     • Comparative and contributory negligence
     • Assumption of risk
3. 3

   Strict Liability and Products Liability

   4 topics

   • Abnormally Dangerous Activities
   • Liability for Animals
   • Products Liability Theories
     • Manufacturing, design, and warning defects
     • Strict liability, negligence, and warranty claims
   • Defenses in Products Cases
4. 4

   Economic, Dignitary, and Other Torts

   5 topics

   • Defamation
     • Libel and slander elements
     • Constitutional limits and privileges
   • Invasion of Privacy
   • Misrepresentation and Fraud
   • Nuisance
     • Private and public nuisance
   • Vicarious Liability and Joint Tortfeasors

Torts flashcards for NextGen Bar Exam

23 of 50 cards from the Torts deck — real questions with worked answers.

1. What are the elements of battery?

   (1) A volitional act by the defendant; (2) intent to cause a harmful or offensive contact (or imminent apprehension of it); (3) harmful or offensive contact actually results to the plaintiff's person; and (4) causation. Contact with anything connected to the plaintiff (e.g., clothing, a held object) counts.

2. What are the elements of assault, and how does it differ from battery?

   Assault: (1) a volitional act; (2) intent to cause apprehension of an imminent harmful/offensive contact; (3) the plaintiff's reasonable apprehension of such imminent contact; and (4) causation. Unlike battery, assault requires no actual contact—only apprehension. Words alone are generally insufficient without conduct.

3. What are the elements of false imprisonment?

   (1) An act or omission that confines or restrains the plaintiff to a bounded area; (2) intent to confine; (3) the plaintiff is conscious of the confinement or harmed by it; and (4) causation. There must be no reasonable means of safe escape known to the plaintiff. Confinement may be by physical barriers, force, threats, or invalid 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 to the person requiring proof of damages (actual severe distress).

5. For IIED based on a bystander theory, what must the plaintiff usually show?

   Generally the plaintiff must be (1) present when the injury to the third person occurs, (2) a close relative of the injured person, and (3) the defendant knew the plaintiff was present and a close relative. Alternatively, the plaintiff can recover by proving the standard IIED elements (intent or recklessness toward them).

6. What are the elements of trespass to land?

   (1) Physical invasion of the plaintiff's real property (by the defendant personally or by propelling an object/substance onto it); and (2) intent to enter the land (intent to trespass is not required—mistake about ownership is no defense). No actual damages need be proven.

7. Distinguish trespass to chattels from conversion.

   Both involve intentional interference with personal property. Trespass to chattels is a minor interference (dispossession or damage); damages equal the harm or loss of use. Conversion is so serious it warrants the defendant paying the chattel's full value (forced sale); remedy is fair market value at the time of conversion or replevin.

8. What is the transferred intent doctrine, and which torts does it apply to?

   If a defendant intends to commit a tort against one person but instead commits a different tort or harms a different person, the intent transfers. It applies among these five torts: battery, assault, false imprisonment, trespass to land, and trespass to chattels.

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 to consent, and the defendant may not exceed the scope of consent. Consent is invalid if obtained by fraud, duress, or mistake induced by the defendant, or if the consented-to act is a crime (majority view).

10. What are the limits on the defense of self-defense?

    A person may use reasonable force to defend against an imminent or reasonably apparent threat. Force must be proportional; deadly force is allowed only when facing a threat of death or serious bodily harm. Many jurisdictions require retreat before deadly force unless in one's home (castle doctrine); modern/MBE majority does not require retreat.

11. What force may be used to defend property, and when is deadly force permitted?

    Reasonable, non-deadly force may be used to prevent a tort against property, after first requesting the intruder to stop (unless futile/dangerous). Deadly force or deadly mechanical devices (e.g., spring guns) may NEVER be used solely to protect property.

12. Distinguish public necessity from private necessity as defenses.

    Public necessity: defendant acts to protect the community from a public catastrophe—a complete defense; no liability even for damage. Private necessity: defendant acts to protect themselves or their property—a qualified defense; the actor is not liable for the trespass but must pay for any actual damage caused (Vincent v. Lake Erie).

13. 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—both actual (cause-in-fact) and proximate cause; and (4) Damages—actual harm. All four must be proven.

14. What is the general standard of care in negligence, and to whom is a duty owed?

    The standard is that of a reasonably prudent person under the same or similar circumstances (an objective standard). Under the majority Cardozo (Palsgraf) view, a duty is owed only to foreseeable plaintiffs within the zone of danger; under the minority Andrews view, a duty is owed to everyone.

15. How does the standard of care apply to children and to professionals?

    Children are held to the standard of a child of like age, intelligence, and experience (subjective), except when engaged in an adult/inherently dangerous activity (then adult standard). Professionals must exercise the knowledge and skill of an ordinary member of their profession in good standing (national standard for physicians).

16. Under traditional rules, what duties does a landowner owe to a trespasser, licensee, and invitee?

    Undiscovered trespasser: no duty. Discovered/anticipated trespasser: warn of known, hidden, artificial dangerous conditions and use reasonable care in active operations. Licensee (social guest): warn of known concealed dangers. Invitee (business/public): warn of known dangers AND reasonably inspect to discover unknown dangers.

17. What is the attractive nuisance doctrine?

    A landowner may be liable for injuries to trespassing children caused by an artificial condition if: (1) the owner knows or should know children are likely to trespass; (2) the owner knows the condition poses an unreasonable risk of serious harm; (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.

18. What is negligence per se and what must a plaintiff show to invoke it?

    Negligence per se establishes duty and breach by violation of a statute. The plaintiff must show: (1) they are in the class of persons the statute intended to protect, and (2) the harm is the type the statute was designed to prevent. Violation creates a presumption (or conclusive proof) of breach; causation and damages must still be proven.

19. What is the Learned Hand formula for breach of duty?

    A defendant is negligent if the burden of taking precautions (B) is less than the probability of harm (P) multiplied by the magnitude/gravity of the loss (L)—i.e., breach exists when B < P × L. It is a cost-benefit test for whether the defendant acted unreasonably.

20. What is res ipsa loquitur and what are its elements?

    It allows an inference of breach where direct evidence is lacking. Elements: (1) the accident is of a type that ordinarily does not occur absent negligence; and (2) the instrumentality was in the defendant's exclusive control (i.e., the negligence is attributable to the defendant). It typically gets the plaintiff past a directed verdict.

21. What is the test for actual cause (cause-in-fact), including when there are multiple causes?

    The default test is 'but-for' causation: the injury would not have occurred but for the defendant's act. When multiple sufficient causes combine (e.g., two fires), use the 'substantial factor' test. When two defendants act negligently but only one caused the harm and it's unclear which, use the alternative causation (Summers v. Tice) approach, shifting the burden to defendants.

22. What is proximate (legal) cause, and how are intervening causes treated?

    Proximate cause limits liability to foreseeable harms—the defendant is liable for harms within the scope of the risk created. Foreseeable intervening causes (e.g., ordinary medical negligence, rescuers, ordinary forces of nature) do not cut off liability. Unforeseeable, independent superseding causes (e.g., intentional crimes, acts of God) break the causal chain and relieve the defendant.

23. What is the eggshell-skull (thin-skull) plaintiff rule?

    A defendant takes the plaintiff as they find them. Once any injury is established, the defendant is liable for the full extent of the plaintiff's damages, even if the plaintiff's pre-existing condition or unusual susceptibility made the harm far greater than foreseeable. The extent of damages need not be foreseeable.

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