NextGen Bar Exam Torts Syllabus

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.

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.

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.

What categories of damages are recoverable in negligence, and is there a duty to mitigate?

Recoverable: compensatory damages—economic (medical expenses, lost earnings) and non-economic (pain and suffering). Punitive damages require wanton/willful or malicious conduct. Nominal damages are NOT available in negligence (actual harm is required). The plaintiff has a duty to mitigate (e.g., seek reasonable treatment); the collateral source rule traditionally bars reducing damages by third-party payments.

Contrast contributory negligence, pure comparative negligence, and modified comparative negligence.

Contributory negligence: any negligence by the plaintiff completely bars recovery (minority; harsh). Pure comparative: plaintiff's recovery is reduced by their percentage of fault, even if 99% at fault. Modified comparative (majority): plaintiff recovers reduced damages only if their fault is below 50% (or not greater than 50%); otherwise barred.

What is assumption of the risk as a defense, and its two forms?

Express assumption: plaintiff contractually agrees (e.g., a waiver) to relieve the defendant of a duty. Implied assumption: plaintiff (1) knew of the risk and (2) voluntarily proceeded anyway. In pure comparative-fault jurisdictions, implied assumption of risk is often merged into the comparative-fault analysis rather than being a complete bar.

What are the requirements for strict liability for abnormally dangerous activities?

An activity is abnormally dangerous if: (1) it creates a foreseeable risk of serious harm even when reasonable care is exercised; and (2) it is not a matter of common usage in the community. The defendant is strictly liable for harms resulting from the dangerous propensity that made the activity abnormally dangerous (e.g., blasting, storing toxic chemicals, keeping explosives).

What is the rule for strict liability for domestic animals?

An owner is generally NOT strictly liable for harm caused by domestic animals (including farm animals and pets). However, the owner IS strictly liable if they have knowledge of the particular animal's dangerous propensities abnormal for its category (the 'one free bite' notion). Negligence liability may also apply.

What is the rule for strict liability for wild animals and for trespassing livestock?

Owners are strictly liable for injuries caused by wild (non-domesticated) animals resulting from their dangerous propensities, even if the owner took precautions—but generally only to non-trespassers, and the harm must flow from the animal's dangerous nature. Owners of trespassing livestock (e.g., cattle) are strictly liable for the property damage they cause.

What are the elements of a strict products liability claim?

(1) The defendant is a commercial supplier (merchant) in the business of selling the product; (2) the product was defective when it left the defendant's control; (3) the defect made the product unreasonably dangerous; (4) actual and proximate causation; and (5) damages. The plaintiff need not be in privity with the defendant.

What are the three types of product defects?

(1) Manufacturing defect—the product departs from its intended design (deviates from others off the line); tested by the consumer-expectation standard. (2) Design defect—the entire line is defective; tested by a risk-utility analysis requiring a reasonable alternative design. (3) Warning defect (failure to warn/inadequate instructions)—foreseeable risks could have been reduced by reasonable warnings.

What are the theories under which a plaintiff can bring a products liability claim?

(1) Strict products liability; (2) Negligence; (3) Implied warranties of merchantability and fitness for a particular purpose; (4) Express warranty and misrepresentation; and (5) Intent (rare). Each theory has distinct elements—e.g., negligence requires a breach of the duty of care, while strict liability focuses on the defective condition regardless of care.

What is the risk-utility (risk-benefit) test for a design defect?

A product is defectively designed if a reasonable alternative design was available that would have reduced the foreseeable risks of harm, and the omission of that alternative rendered the product not reasonably safe. Courts weigh factors such as utility, risk magnitude, cost and feasibility of the alternative, and the alternative's effect on usefulness/price.

What defenses are available in a strict products liability action?

(1) Comparative/contributory fault (depending on jurisdiction—many apply comparative fault to reduce recovery); (2) Assumption of the risk (knowing, voluntary use of a known defective product); (3) Product misuse that is unforeseeable (foreseeable misuse does not bar recovery); and (4) substantial alteration of the product after it left the defendant's control.

What are the elements of common law defamation?

(1) A defamatory statement (one that tends to harm the plaintiff's reputation); (2) of or concerning the plaintiff; (3) publication to a third party (intentionally or negligently); and (4) damage to the plaintiff's reputation. For matters of public concern, the Constitution adds fault and falsity requirements.

Distinguish libel from slander, and what is slander per se?

Libel is defamation in written or permanent form—general damages are presumed. Slander is spoken/transitory defamation—the plaintiff must prove special (pecuniary) damages, UNLESS it is slander per se. Slander per se categories (damages presumed): statements about (1) the plaintiff's business/profession, (2) commission of a serious crime, (3) having a loathsome disease, and (4) sexual misconduct/unchastity.

What additional constitutional elements apply when defamation involves a public official/figure versus a private figure?

For public officials/figures, the plaintiff must prove falsity AND actual malice (knowledge of falsity or reckless disregard for the truth—New York Times v. Sullivan). For private figures on matters of public concern, the plaintiff must prove falsity and at least negligence to recover actual damages; actual malice is required for presumed or punitive damages.

What are the four branches of invasion of privacy?

(1) Appropriation—unauthorized use of the plaintiff's name or likeness for commercial advantage; (2) Intrusion upon seclusion—prying into the plaintiff's private affairs in a way objectionable to a reasonable person; (3) False light—publicizing facts placing the plaintiff in a false light objectionable to a reasonable person (requires actual malice if of public concern); (4) Public disclosure of private facts—publicizing private information objectionable to a reasonable person and not of legitimate public concern.

What are the elements of intentional misrepresentation (fraud/deceit)?

(1) A misrepresentation of a material fact; (2) scienter (knowledge of falsity or reckless disregard for its truth); (3) intent to induce the plaintiff's reliance; (4) causation (actual reliance); (5) justifiable reliance; and (6) damages (actual pecuniary loss). Opinions, predictions, and puffery generally are not actionable.

What are the elements of negligent misrepresentation, and how does it differ from fraud?

Elements: (1) misrepresentation by a defendant in a business/professional capacity; (2) breach of duty toward a particular plaintiff (failure to use reasonable care in obtaining/communicating information); (3) causation; (4) justifiable reliance; and (5) damages. It differs from fraud because it requires only negligence (not scienter) and liability is generally limited to commercial transactions and foreseeable plaintiffs.

Distinguish private nuisance from public nuisance.

Private nuisance is a substantial and unreasonable interference with another's use and enjoyment of their land; only those with a property interest can sue. Public nuisance is an unreasonable interference with a right common to the general public (e.g., public health/safety); a private individual may recover only if they suffered harm different in kind from the general public.

How is 'unreasonable interference' determined in a private nuisance claim, and what is the role of 'coming to the nuisance'?

Interference is unreasonable when the gravity of the harm outweighs the utility of the defendant's conduct, judged by an average person in the community (not a hypersensitive plaintiff). 'Coming to the nuisance' (plaintiff moving in after the activity existed) is not a complete defense but is a factor courts weigh.

What are the elements of respondeat superior (employer vicarious liability)?

An employer is vicariously liable for torts committed by an employee acting within the scope of employment. Conduct is within scope if it is of the kind the employee was hired to perform, occurs substantially within authorized time/space limits, and is at least partly to serve the employer. Minor detours are within scope; major 'frolics' are not.

Is an employer vicariously liable for an employee's intentional torts, and what about independent contractors?

Intentional torts are usually outside the scope of employment UNLESS force is inherent in the job (e.g., bouncers), the tort furthers the employer's business, or authorized. Generally a principal is NOT vicariously liable for an independent contractor's torts, except for: (1) inherently dangerous activities, and (2) non-delegable duties.

When is a car owner vicariously liable for another driver, and what is parental liability for children's torts?

Generally a car owner is not liable for another's negligent driving, except under the family-car doctrine (liable for family members' use) or owner-consent (permissive use) statutes. At common law, parents are generally NOT vicariously liable for their children's torts but may be directly liable for their own negligence (e.g., failure to supervise a child with known dangerous tendencies).

What is joint and several liability, and how does it interact with contribution?

Under joint and several liability, when two or more tortfeasors cause a single indivisible injury, the plaintiff may recover the entire judgment from any one defendant. That defendant may then seek contribution from the others for their proportionate share of fault (comparative contribution in most states).

What is the difference between contribution and indemnity among tortfeasors?

Contribution allows a defendant who paid more than their fair share to recover the excess from other liable tortfeasors, apportioned by relative fault. Indemnity shifts the ENTIRE loss from one party to another (e.g., a retailer held strictly liable recovering full amount from the manufacturer, or a vicariously liable party recovering from the active wrongdoer).

What duty is owed to rescuers, and what is the 'firefighter's rule'?

'Danger invites rescue'—a rescuer is a foreseeable plaintiff, so a defendant whose negligence imperils someone (or themselves) is liable for injuries to a rescuer. Exception: the firefighter's rule bars professional rescuers (firefighters, police) from recovering for injuries from the inherent risks of their job.

When does a defendant owe an affirmative duty to act or rescue?

Generally there is no duty to act for another's benefit. Exceptions creating a duty: (1) a special relationship (parent-child, common carrier-passenger, employer-employee, innkeeper-guest); (2) the defendant created the peril; (3) the defendant voluntarily undertook to assist (must then act with reasonable care); or (4) a duty imposed by contract or statute.

What are the requirements for negligent infliction of emotional distress (NIED)?

Two main theories: (1) Zone of danger—the plaintiff was in the zone of physical danger and suffered a physical manifestation of distress; or (2) Bystander recovery—the plaintiff was located near the scene, contemporaneously perceived the injury to a close relative, and (in many states) suffered resulting distress. Some jurisdictions require a physical symptom of the emotional distress.