Torts (MBE) Long Outline

TORTS MASTER TREATISE OUTLINE (MBE)

Roughly half of all MBE Torts questions test negligence; the rest spread across intentional torts, strict liability, products liability, defamation, and the dignitary and economic torts. This outline is your one source of truth: every black-letter rule, every majority/minority split, and every Restatement (Second versus Third) divergence the examiners test. Unless a question says otherwise, apply majority common-law rules — the key MBE defaults are flagged below — and the final section gives you the complete attack plan.

I. INTENTIONAL TORTS TO PERSONS AND PROPERTY

A. The Prima Facie Case and Intent

Rule: Every intentional tort requires (1) a volitional act by the defendant, (2) intent, and (3) causation. A defendant acts with intent when he acts with the purpose of producing the consequence, or when he acts knowing with substantial certainty that the consequence will result. Motive is irrelevant — a practical joker who intends the contact or apprehension is liable even if he meant no harm. There is no incapacity defense to intent: children and mentally incompetent persons are liable for their intentional torts so long as they formed the requisite intent (a five-year-old who pulls a chair away knowing with substantial certainty the plaintiff will fall has committed battery).

Transferred intent: Intent transfers (a) from the intended victim to the actual victim, and (b) from the intended tort to the tort actually committed. Transferred intent applies only among the five original trespass writs: battery, assault, false imprisonment, trespass to land, and trespass to chattels. It does not apply to IIED (except in the limited bystander situation discussed below) or to conversion.

MBE TIP: Examiners love "substantial certainty." Firing a gun into a crowd "hoping to hit no one" still intends a battery as to whomever is hit. Watch the dual transfer: D throws a rock at A intending only to frighten him (assault intent); the rock hits B — D is liable to B for battery, because intent transfers across victims and across torts.

B. Battery

Rule: Battery is (1) an intentional (2) harmful or offensive contact (3) with the plaintiff's person. Contact is harmful if it causes injury, pain, or impairment; it is offensive if it would offend a reasonable sense of personal dignity — an objective standard, unless the defendant knows of the plaintiff's particular hypersensitivity and exploits it. The "plaintiff's person" includes anything connected to the plaintiff: clothing, a cane, a plate snatched from the hand, the car the plaintiff is sitting in. The contact may be indirect or delayed — setting a trap, poisoning food, or ordering a dog to attack all suffice. The plaintiff need not be aware of the contact when it occurs (a battery can be committed on an unconscious patient), and no actual damages are required — nominal and, where the conduct is malicious, punitive damages are available.

Single versus dual intent split: Under the majority/Restatement (Second) framing as commonly tested, the defendant must intend the contact, and the contact must in fact be harmful or offensive ("single intent"). A minority of jurisdictions, and one reading of the Restatement (Third), require that the defendant intend the contact and intend it to be harmful or offensive ("dual intent"). The MBE almost always tests single intent: a well-meaning hug or unauthorized surgery is a battery even if benevolently motivated.

EXAMPLE: A surgeon obtains consent to operate on the patient's right ear but, mid-surgery, decides the left ear also needs work and operates on it. Even if the second operation was skillfully performed and medically beneficial, the surgeon committed a battery — the contact was beyond the scope of consent, and good motive is no defense.

C. Assault

Rule: Assault is (1) an intentional act (2) creating in the plaintiff a reasonable apprehension (3) of an imminent harmful or offensive contact. Apprehension means expectation, not fear — a frail plaintiff can assault a heavyweight champion. The plaintiff must be aware of the threat when it is made (contrast battery). Apparent ability is enough: an unloaded gun pointed at a plaintiff who believes it is loaded creates a valid assault claim. Words alone are generally insufficient — they must be coupled with some overt act or menacing circumstance — but words can negate an assault ("if you weren't an old man, I'd punch you") or render a threat non-imminent ("I'll beat you up tomorrow" is no assault). Conditional threats backed by apparent ability ("your money or your life") are assaults. No damages required.

MBE TIP: Watch the timing. Threats of future harm and threats made over the telephone from far away fail the imminence requirement. And remember the awareness asymmetry: a plaintiff who learns only later that a gun was pointed at his back has no assault claim, but an unconscious plaintiff who is touched has a battery claim.

D. False Imprisonment

Rule: False imprisonment is (1) an intentional act of restraint or confinement (2) of the plaintiff to a bounded area, where (3) the plaintiff is aware of the confinement or harmed by it. Sufficient methods of confinement include physical barriers, physical force, threats of immediate force against the plaintiff, his family, or his property, failure to release when under a legal duty to do so (a jailer holding a prisoner past his term), and invalid assertion of legal authority (false arrest). Insufficient: moral pressure, future threats, or economic coercion. The time of confinement is irrelevant — minutes suffice. An area is not "bounded" if there is a reasonable means of escape of which the plaintiff is actually aware; an escape route is not reasonable if it is dangerous, disgusting, humiliating, or hidden. Blocking one exit when others are open is not confinement, and merely preventing someone from entering a place is not imprisonment.

Shopkeeper's privilege: A merchant who detains a suspected shoplifter is privileged against false imprisonment claims if (1) there is a reasonable belief that a theft occurred, (2) the detention is conducted in a reasonable manner — only non-deadly force may be used — and (3) the detention lasts only a reasonable time (typically the time needed to investigate, e.g., 10–15 minutes) and occurs on or in the immediate vicinity of the premises. A reasonable mistake about whether the plaintiff stole is forgiven; an unreasonable manner or excessive duration destroys the privilege.

ESSAY WRITING TIP: When you see a store detention fact pattern, analyze false imprisonment first, then the shopkeeper's privilege element by element — graders award points for each prong (reasonable suspicion, reasonable manner, reasonable duration), and the fact pattern almost always makes one prong contestable.

E. Intentional Infliction of Emotional Distress (IIED)

Rule: IIED requires (1) extreme and outrageous conduct — conduct that "exceeds all bounds of decency tolerated in a civilized society" — (2) committed intentionally or recklessly, (3) causing (4) severe emotional distress. This is the only intentional tort to the person that requires proof of actual damages (severe distress); under the majority rule no physical manifestation is required, though the distress must be more than a reasonable person could endure. Mere insults, indignities, and petty oppression are not outrageous. Conduct that is not normally outrageous becomes outrageous when: (a) it is continuous or repetitive; (b) the defendant is a common carrier or innkeeper (held to a higher standard of courtesy toward patrons); or (c) the plaintiff is a member of a fragile class — young children, the elderly, pregnant women — or has a known sensitivity the defendant deliberately exploits.

Bystander IIED: When the defendant's outrageous conduct is directed at a third person, a plaintiff-bystander recovers if she was (1) present at the time, (2) a close family member of the victim, and (3) the defendant knew of her presence and relationship. A bystander who is not a close relative must additionally prove the distress produced bodily harm. Ordinary transferred intent does not otherwise apply to IIED.

MBE TIP: IIED is a fallback tort — if any other intentional tort fits the facts, the credited answer is the other tort, because IIED's damage requirement and "outrageousness" hurdle make it the harder claim. Choose IIED only when nothing else works (e.g., pure verbal abuse, mishandling a corpse, false report of a relative's death).

F. Trespass to Land

Rule: Trespass to land is (1) an intentional (2) physical invasion (3) of the plaintiff's real property. The only intent required is the intent to enter the land (or cause a physical object to enter) — the defendant need not know the land belongs to another; mistake of ownership is no defense. The invasion must be by a tangible physical object: the defendant's body, a thrown rock, flooding water, a herded animal. Intangible intrusions — vibrations, odors, light, noise — are analyzed as nuisance, not trespass. The plaintiff's interest extends to the airspace above and subsurface below to a reasonable usable distance. The proper plaintiff is the person with the right to possession (a tenant can sue; an out-of-possession landlord generally cannot for ordinary trespass). No damages are required — nominal damages vindicate the possessory right. A defendant who enters with permission but remains after permission ends, or who refuses to remove an object he is obliged to remove, also commits trespass.

EXAMPLE: D, relying on a faulty survey, builds a fence two feet over the boundary onto P's land. D's good-faith, reasonable mistake is irrelevant — D intended to place the fence where it stands, and that is all the intent trespass requires. P recovers at least nominal damages and may obtain an injunction.

G. Trespass to Chattels and Conversion

Trespass to chattels: An intentional interference with the plaintiff's right of possession in personal property, either by (a) intermeddling (direct damage — denting, scratching, harming) or (b) dispossession (depriving the plaintiff of lawful possession). For mere intermeddling, actual damages are required — harm to the chattel, deprivation of use for a substantial time, or harm to the owner; nominal damages alone do not suffice. Mistake of ownership is again no defense.

Conversion: An intentional interference with possession so serious in nature or consequence that it warrants requiring the defendant to pay the chattel's full fair market value. Seriousness is judged by the duration and extent of the interference, the defendant's good or bad faith, the harm done, and the inconvenience caused. Acts of conversion include theft, wrongful destruction, material alteration, substantial misuse, and wrongful refusal to return. Remedies: damages equal to full FMV at the time and place of conversion (a "forced sale" — the defendant keeps the chattel) or replevin (recovery of the chattel itself). Conversion lies only for tangible personal property and intangibles merged into a document (a promissory note, a stock certificate). An innocent purchaser from a thief is still a converter; a bailee who innocently receives and redelivers goods generally is not.

MBE TIP: The trespass-to-chattels/conversion line is a favorite. Borrowing a classmate's casebook for ten minutes: trespass to chattels at most (and without damage, no claim). "Borrowing" a car for a month and returning it wrecked: conversion. The bigger the interference, the more likely the credited answer is conversion with full-value damages.

II. DEFENSES TO INTENTIONAL TORTS

A. Consent

Rule: Consent — express or implied — is a defense to every intentional tort, but the defendant must stay within its scope. Express consent is vitiated by fraud or duress going to an essential matter (fraud as to a collateral matter does not vitiate; duress means present physical threats, not economic pressure or future threats). Implied consent arises from custom and usage (ordinary contacts of crowded life; contacts inherent in a sport — but not an intentional blindside punch beyond the rules' contemplation) and from the plaintiff's objective conduct reasonably interpreted (silently holding out an arm in a vaccination line). Capacity is required: children, the intoxicated, and the mentally incompetent can consent only to things within their capacity to understand. Consent to criminal acts: the traditional majority holds it ineffective; the minority/Restatement (Second) makes it effective unless the statute was designed to protect the consenting class (statutory rape laws), in which case consent always fails.

EXAMPLE: P consents to a boxing match. D, mid-round, pulls a knife and stabs P. The consent covered the contacts customary to boxing; the stabbing exceeded its scope, so D is liable for battery notwithstanding the consent.

B. Self-Defense, Defense of Others, Defense of Property

Self-defense: One who reasonably believes he is about to be attacked may use proportionate force; a reasonable mistake about the danger is excused. Deadly force only against threatened death or serious bodily harm. No duty to retreat (traditional majority); the Restatement (Second) and a minority require retreat before deadly force where safely possible — never from one's home. Unavailable to the initial aggressor (unless the victim escalates to deadly force); never retaliation after the threat ends. A defender who accidentally injures a bystander keeps the privilege and is liable only for negligence toward the bystander.

Defense of others: The defender may use the force the third person could lawfully use. Modern majority: a reasonable mistake about the third party's privilege is excused; the older minority "stand in the shoes" rule imposes liability if the person aided actually had no privilege (the apparent victim was the aggressor, or the "attackers" were plainclothes police making a lawful arrest).

Defense of property: Only reasonable, non-deadly force, after a request to desist unless futile or dangerous. Deadly force may never be used merely to protect property — including by mechanical device: a spring gun is unlawful whenever the owner standing there could not have shot the intruder personally (Katko v. Briney). Reasonable mistake is allowed as to whether an intrusion is occurring, but the privilege fails against an entrant with a superior privilege (necessity, lawful recapture, lawful arrest) — mistake about that is not excused. Once the property tort is complete, only recapture rules apply.

MBE TIP: Any answer choice allowing deadly force, deadly traps, or vicious unleashed dogs purely to protect an unoccupied building is wrong. If a dweller is present, the analysis converts to self-defense (threat to the occupants), where deadly force may become proportionate.

C. Recapture of Chattels

Rule: An owner may use reasonable non-deadly force to recapture a chattel only when in fresh ("hot") pursuit of one who wrongfully took it; a timely demand for return must precede force unless demand would be futile or dangerous. Force may be used only against the wrongdoer or someone who took with knowledge — never against an innocent transferee, and mistake is not excused. When the chattel ends up on another's land: if through the landowner's fault (he stole it), the owner may enter at reasonable times in a reasonable manner to reclaim after demand; if through the owner's own fault or pure accident attributable to him, he must resort to legal process; if there without anyone's fault (a windstorm blows it there), the owner may enter to retrieve but pays for any actual damage caused by the entry.

D. Necessity — Public versus Private

Rule: Necessity is a defense only to property torts (trespass to land, trespass to chattels, conversion) — never to torts against the person. Public necessity — interference to avert an imminent public disaster (burning a row of houses to stop a fire's spread, destroying diseased livestock) — is an absolute defense: the defendant pays nothing, even for actual damage. Private necessity — interference to protect the defendant's own person or property (or those of a few) — is a qualified or incomplete defense: the defendant is not liable for the technical tort, for nominal or punitive damages, and crucially may not be expelled or excluded by the landowner while the emergency persists (Ploof v. Putnam — a dock owner who unmoored a storm-tossed sloop was liable for resulting injuries), but the defendant must pay for any actual harm his entry causes (Vincent v. Lake Erie — the shipowner who deliberately kept his vessel lashed to the dock during a storm owed for the dock damage).

ESSAY WRITING TIP: Necessity fact patterns hide two claims: the entrant's claim against an owner who wrongfully expelled him (owner liable — the entrant's privilege is superior), and the owner's claim against the entrant for actual property damage (entrant liable under private necessity, not liable under public necessity). Write both directions.

III. NEGLIGENCE — DUTY

A. The General Duty and the Foreseeable Plaintiff

Rule: Negligence requires duty, breach, actual cause, proximate cause, and damages. Whenever a person engages in affirmative risk-creating conduct, he owes a duty of reasonable care — but to whom? Under Palsgraf v. Long Island R.R.: the Cardozo (majority) view limits the duty to plaintiffs within the zone of foreseeable danger — unforeseeable plaintiffs lose on duty grounds. The Andrews (minority) view holds that a duty is owed to everyone injured in fact; foreseeability is relocated to proximate cause. Two plaintiffs are deemed foreseeable as a matter of law: rescuers ("danger invites rescue" — a defendant who imperils himself or another owes a duty to one who attempts rescue), subject to the firefighter's rule barring police and firefighters from recovering for risks inherent in their duties; and a viable fetus (prenatal injuries are actionable; most states allow wrongful-death actions for a viable fetus; "wrongful life" claims by the child are rejected almost everywhere, while parents' wrongful birth/wrongful pregnancy claims for negligent sterilization or failure to diagnose typically yield damages for the additional medical expenses and pain of labor, but not child-rearing costs in most states).

MBE TIP: On the MBE, apply Cardozo unless the question directs otherwise. If the answer choices split between "no duty because unforeseeable plaintiff" and "no proximate cause," check whether the call of the question names Andrews — that is the signal to move foreseeability into causation.

B. Affirmative Duties to Act

Rule: There is no general duty to act affirmatively — no duty to rescue a stranger, however easy the rescue. Exceptions: (1) Special relationship — common carrier–passenger, innkeeper–guest, employer–employee, school–student, parent–child, business–invitee, jailer–prisoner — imposing reasonable aid and protection. (2) Defendant created the peril — under the Restatement (Third) and modern majority, even by innocent, non-negligent conduct. (3) Voluntary undertaking: one who begins to assist must proceed with reasonable care and may not discontinue if doing so leaves the victim worse off; Good Samaritan statutes shield gratuitous rescuers from ordinary — not gross — negligence. (4) Duty to control third persons: only where the defendant has the ability and authority to control and knows or should know of the propensity for harm (parent over a child with known dangerous habits; therapist's duty to warn an identifiable victim of a patient's credible threat — Tarasoff, adopted in most states). (5) Contract or statute.

EXAMPLE: D, driving carefully, strikes a pedestrian who darted out. D was not negligent in the collision, but if D drives away leaving the pedestrian bleeding in the road, D is liable for the additional harm caused by the failure to aid — the innocent creation of peril triggered an affirmative duty.

C. Landowner and Occupier Duties

Traditional (still majority) status categories govern injuries from conditions on the land; for activities conducted on the land, the occupier owes reasonable care to all lawful entrants and only the willful/wanton standard to trespassers.

Undiscovered trespasser: No duty — he takes the land as he finds it. Discovered or anticipated trespasser (including known habitual trespassers): warn of or make safe known, man-made, highly dangerous, concealed conditions — "known man-made death traps." Licensee (enters with permission for her own purposes — the social guest): warn of known dangerous conditions the licensee is unlikely to discover; no duty to inspect or repair. Invitee (enters for the possessor's business purposes or as a member of the public on land held open to the public): full reasonable care, including the affirmative duty to inspect for non-obvious dangers and make them safe (warning ordinarily suffices unless inadequate). An invitee who exceeds the scope of the invitation — the "Employees Only" door — is downgraded to licensee or trespasser. Open and obvious dangers generally need no warning.

Attractive nuisance doctrine (child trespassers): A possessor owes reasonable care to child trespassers as to artificial conditions when (1) he knows or should know children are likely to trespass in the area, (2) the condition poses an unreasonable risk of serious injury or death, (3) the children, because of their youth, do not discover or appreciate the danger, (4) the burden of eliminating the risk is slight compared with the magnitude of the risk, and (5) the possessor fails to exercise reasonable care. The child need not have been lured onto the land by the condition — "attraction" is not an element under the Restatement; it bears only on whether trespass was foreseeable.

Modern unitary approach: Following Rowland v. Christian, roughly half the states owe reasonable care under all the circumstances to all entrants, status being merely a factor — though many retain the limited-duty rules for trespassers. The Restatement (Third) agrees, excepting "flagrant" trespassers (duty only to refrain from willful/wanton conduct and to aid if helpless). Absent direction, apply the traditional categories.

Lessors and vendors: A lessor out of possession is not liable for conditions on leased premises, with five exceptions: (1) concealed dangerous conditions known to the lessor and unknown to the lessee at transfer; (2) common areas under the lessor's control; (3) negligent repairs; (4) a covenant to repair; (5) premises leased for admission of the public (inspect and repair before transfer). A vendor must disclose known, concealed, unreasonably dangerous conditions; liability runs until the buyer has a reasonable opportunity to discover and remedy.

MBE TIP: Memorize the status ladder as a duty escalator — trespasser (nothing/known man-made death traps), licensee (warn of known hidden dangers), invitee (inspect and make safe). The single most-tested distinction is licensee versus invitee: the social guest who helps with the dishes is still a licensee; the customer browsing without buying is still an invitee; the meter reader is an invitee; the door-to-door salesman is usually treated as a licensee (implied permission) until invited in to do business.

D. Standards of Care — Children, Professionals, Common Carriers

Children: A child is held to the standard of a hypothetical child of like age, intelligence, and experience acting under similar circumstances — a partly subjective standard. Children below approximately four or five are conclusively incapable of negligence (a minority follows the "rule of sevens": under seven incapable, seven-to-fourteen rebuttably incapable). Exception: a child engaged in an adult activity — typically operating a motorized vehicle (car, motorboat, snowmobile) — is held to the full adult reasonable-person standard.

Professionals: A professional owes the knowledge, skill, and care of an ordinary member of the profession in good standing — an empirical standard set by the profession's actual customary practice, which (unlike ordinary custom) is conclusive. For physicians, the modern majority applies a national standard of care; a shrinking minority retains the "same or similar locality" rule for general practitioners. Specialists are everywhere held to the national standard of the specialty. Expert testimony is generally required to establish the standard and its breach, except where the negligence is obvious to laypersons (sponge left in the abdomen).

Informed consent (medical): A physician must disclose the material risks of treatment, alternatives, and the risks of refusing; failure is negligence (not battery, so long as the patient consented to the basic procedure). Split on the measure: the traditional majority uses the professional standard (what a reasonable physician customarily discloses — expert testimony required); a strong modern trend uses the patient ("materiality") standard (what a reasonable patient would find significant). Causation: an adequately informed patient (objective test in most states) would have declined. No duty for commonly known risks, waiver, incompetence (disclose to surrogate), or therapeutic privilege (narrowly construed). Performing a different or unconsented procedure remains battery.

Common carriers and innkeepers: Traditionally liable to passengers/guests for even slight negligence ("utmost care consistent with practical operation"); the Restatement (Third) and a growing number of courts fold this into ordinary reasonable care under the circumstances.

E. Negligence Per Se — Statutory Standards

Rule: An unexcused violation of a statute providing for a criminal penalty substitutes for duty and breach when (1) the plaintiff is within the class of persons the statute protects, and (2) the harm is the type of harm the statute was designed to prevent. Effect: majority — negligence per se, a conclusive presumption of duty and breach (causation and damages must still be proved); minority — a rebuttable presumption or mere evidence of negligence. Excuses (Restatement): compliance more dangerous than violation; compliance impossible; sudden emergency not of the actor's making; incapacity; the actor neither knew nor should have known of the occasion for compliance (the tail light that just burned out). Compliance with a statute is not conclusive of due care. Violation of a licensing statute is generally not negligence per se — the unlicensed actor is simply held to the licensed actor's standard.

EXAMPLE: A statute requires shippers to label flammable cargo to protect transport workers from fire. Unlabeled cargo falls and crushes a worker's foot. No negligence per se — the harm (crushing) is not the type (fire) the statute targets. The worker must prove ordinary negligence instead.

F. Negligent Infliction of Emotional Distress (NIED) — Three Theories

Rule: Emotional distress without physical impact is recoverable in negligence under three doctrines. (1) Zone of danger ("near miss"): the defendant's negligence placed the plaintiff at imminent risk of physical impact, and the distress produced physical manifestations (majority requirement; a modern-trend minority dispenses with it; the old actual-touching "impact rule" survives in a handful of states). (2) Bystander recovery: a plaintiff outside the zone recovers for witnessing injury to another if she (a) is closely related to the victim (spouse, parent, child), (b) was present at the scene, and (c) contemporaneously perceived the event (Dillon/Thing majority; the Restatement (Second) and a minority confine bystanders to the zone of danger). Learning of the accident later defeats the claim. (3) Special ("direct duty") relationship: negligence in a relationship highly likely to cause distress — erroneous notification of death, mishandling of a corpse — is actionable without physical symptoms or presence limits.

ESSAY WRITING TIP: Identify which of the three NIED gateways the plaintiff fits before discussing damages; a bystander outside the zone who is a mere friend of the victim fails theory (2) and should lose — say so and move on. And always check first whether the plaintiff suffered physical injury: if so, emotional distress rides along as ordinary parasitic damages and no NIED theory is needed.

IV. NEGLIGENCE — BREACH

A. The Reasonably Prudent Person

Rule: Breach is conduct falling below the standard of the reasonably prudent person under the same or similar circumstances — an objective standard. The defendant's individual clumsiness, stupidity, inexperience, or honest best efforts are no excuse ("good faith is not enough"); a beginner driving a car is held to the standard of the reasonably experienced driver. The standard incorporates the defendant's physical characteristics where relevant (a blind defendant is held to the reasonable blind person's standard — and a reasonable blind person takes precautions a sighted one need not), but not mental deficiencies: insanity and mental disability are disregarded, and voluntary intoxication is held to the sober standard. Superior knowledge, skill, or experience raises the standard — the reasonable person with that knowledge. The emergency doctrine makes the sudden emergency one of the "circumstances," but not if the defendant negligently created the emergency. Courts and the Restatement frame breach through the Hand formula: conduct is negligent when the burden of precautions (B) is less than the probability of harm (P) times the gravity of the threatened loss (L) — B < PL.

B. Custom and Industry Practice

Rule: Evidence of custom — what others in the industry or community do — is admissible but never conclusive on breach: an entire industry may be lagging behind reasonable prudence (The T.J. Hooper). Compliance with custom is some evidence of due care; deviation from custom is some evidence of negligence; the jury decides. Exception: in professional malpractice, the profession's custom conclusively defines the standard — a physician who conforms to customary practice is not negligent, and one who deviates is.

MBE TIP: An answer choice saying "not liable because the defendant complied with industry custom" is wrong for ordinary defendants and right only for professionals. Conversely, "liable because she violated the custom of the trade" overstates — outside the professions, custom is merely evidence.

C. Res Ipsa Loquitur

Rule: Where the plaintiff cannot prove specific negligent conduct, breach may be shown circumstantially when (1) the accident is of a kind that ordinarily does not occur absent negligence, (2) the negligence is attributable to the defendant — traditionally via exclusive control of the instrumentality; the Restatement (Third) asks more flexibly whether the defendant is the probable responsible party — and (3) traditionally, the injury was not due to the plaintiff's own action. Effect: the great majority treats res ipsa as a permissible inference — the plaintiff survives a directed verdict, but the jury may reject the inference; a minority makes it a burden-shifting presumption. Classic cases: the falling flour barrel, exploding bottles, surgical sponges. Ybarra v. Spangard extends the doctrine against multiple medical defendants who collectively controlled an unconscious patient, shifting the explanatory burden to all of them.

EXAMPLE: P, a passenger, is injured when the airplane crashes in clear weather with no distress call. P cannot identify the negligent act, but planes do not ordinarily crash absent negligence and the airline controlled the instrumentality — res ipsa carries P to the jury. Contrast: a barrel falls in a warehouse used by three independent contractors — exclusive control fails, and (outside Ybarra's medical context) res ipsa fails.

V. NEGLIGENCE — CAUSATION

A. Actual (Factual) Cause

But-for test: The defendant's breach is an actual cause if the injury would not have occurred but for the breach. If the harm would have happened anyway, causation fails — the classic trap is the unread warning, the unavailable safety device that would not have been used, or the doctor's omission where the patient was doomed regardless.

Multiple sufficient causes — substantial factor: Where two or more forces combine, each alone sufficient to cause the entire harm (two negligently set fires merge and burn the plaintiff's house), the but-for test fails for each; instead, each defendant whose conduct was a substantial factor in producing the harm is liable. The Restatement (Third) reaches the same result by deeming each "multiple sufficient cause" a factual cause, retiring the substantial-factor label.

Alternative liability (Summers v. Tice): Where a small number of defendants (typically two) are all negligent toward the plaintiff but only one — unidentifiable — actually caused the harm (two hunters fire; one pellet hits the plaintiff), the burden of proof shifts to the defendants to exculpate themselves; absent proof, both are jointly and severally liable. All defendants must be before the court and all must have been negligent.

Market-share liability (Sindell, DES): Where a fungible product made by many manufacturers injures plaintiffs who cannot identify the maker, a minority of jurisdictions lets the plaintiff join makers of a substantial share of the market; each defendant pays damages in proportion to its market share unless it proves it could not have made the unit, and liability is several, not joint. Rejected for non-fungible products.

Loss of chance: In medical-misdiagnosis cases where the patient's pre-existing survival odds were below 50%, a substantial and growing number of states allow recovery for the lost chance itself, valued proportionately; the traditional all-or-nothing rule denies recovery when survival was already improbable. Flag this as an open split.

B. Proximate (Legal) Cause

Rule: The defendant is liable only for harms that are a foreseeable result of the risks that made the conduct negligent — the foreseeability test of the majority and the Restatement (Third)'s "scope of the risk" formulation. The discredited direct-cause approach (In re Polemis — liability for all direct consequences however unforeseeable) survives only as a minority relic; Wagon Mound entrenched foreseeability of the type of harm as the touchstone. The precise manner and extent of the harm need not be foreseeable — only its general type.

Intervening versus superseding causes: A foreseeable intervening force does not cut off liability. Deemed foreseeable as a matter of law: subsequent medical malpractice, negligence of rescuers, the plaintiff's weakened-condition accidents and diseases (the plaintiff on crutches who falls again, hospital pneumonia), reactions of others (panic, protective efforts), and ordinary third-party negligence when among the risks created. A superseding cause — an unforeseeable, extraordinary intervening force — breaks the chain: unforeseeable intentional torts and crimes of third parties (unless the defendant's duty was precisely to guard against them, e.g., inadequate-security cases) and unforeseeable acts of God. The test is always: was the intervening force, or at least the resulting type of harm, within the risk the defendant created?

Eggshell-skull rule: The defendant takes the plaintiff as he finds him — once any foreseeable injury is established, the defendant is liable for the full extent of the harm, however unforeseeably severe, including aggravation of pre-existing physical and psychological conditions. The rule applies to all torts, intentional and strict-liability included.

MBE TIP: When an answer choice turns on "unforeseeable extent of injury," it is wrong — extent never matters (eggshell skull). When it turns on an intervening criminal act, ask whether protecting against that very crime was the defendant's job (landlord, common carrier, security company): if yes, the crime is foreseeable and not superseding.

VI. NEGLIGENCE — DAMAGES AND DEFENSES

A. Damages

Rule: Damages are an element of negligence — actual harm is required; nominal damages are unavailable, and purely economic loss without physical impact to person or property is not recoverable (the economic-loss rule). A physically injured plaintiff recovers all parasitic damages: medical expenses, lost earnings and earning capacity, pain and suffering, and emotional distress flowing from the physical harm (no NIED theory needed). Punitive damages require willful, wanton, reckless, or malicious conduct — never mere negligence. Collateral source rule: traditionally, benefits from sources independent of the tortfeasor — insurance, employment benefits, gratuitous aid — do not reduce recovery; many states have statutorily modified or abolished the rule. Avoidable consequences (mitigation): no recovery for harm avoidable by reasonable post-injury conduct (refusing standard medical treatment) — a limitation on damages, not a liability defense.

B. Contributory Negligence and Last Clear Chance

Rule: At common law, the plaintiff's own negligence proximately contributing to her injury was a complete bar, however slight her fault — a regime surviving only in Alabama, Maryland, North Carolina, Virginia, and D.C. Contributory negligence is no defense to intentional torts or willful/wanton/reckless misconduct, nor to negligence per se under statutes protecting this class of plaintiffs from their own incapacity (child-labor laws). Last clear chance — "the plaintiff's rebuttal" — rescues the contributorily negligent plaintiff when the defendant had the last clear opportunity to avoid the accident: for a plaintiff in helpless peril, a defendant who knew or should have known is liable; for merely inattentive peril, most courts require actual knowledge. Abolished in comparative-fault states.

C. Comparative Negligence

Rule: Nearly all states apportion damages by fault. Pure comparative negligence (about a dozen states): the plaintiff recovers reduced by her percentage of fault, even at 99%. Modified comparative negligence (the majority) bars recovery past a threshold — "50% bar" states allow recovery if her fault is not greater than the defendant's (50/50 plaintiff recovers); "49% bar" states require it be less than (50/50 plaintiff loses). Plaintiff fault reduces recovery even against reckless defendants (not intentional tortfeasors), and last clear chance is abolished. MBE default: pure comparative negligence unless the question specifies otherwise — an express NCBE instruction.

MBE TIP: Read the jurisdictional stem clause first. "A statute in the jurisdiction bars recovery when the plaintiff's negligence exceeds the defendant's" = 50% bar modified system; compute the percentages given. If the question is silent, pure comparative — never pick "barred because contributorily negligent" in a silent question.

D. Assumption of Risk

Express assumption of risk: A plaintiff who by contract or explicit agreement knowingly and voluntarily relieves the defendant of the duty of care cannot recover — a complete defense even in comparative states — unless the exculpatory clause violates public policy: agreements purporting to excuse common carriers, public utilities, and providers of essential services, clauses procured by grossly unequal bargaining power, and waivers of gross negligence or recklessness are unenforceable.

Implied assumption of risk: The plaintiff (1) actually knew and appreciated the specific risk (subjective) and (2) voluntarily encountered it; the choice is not voluntary where the defendant left no reasonable alternative (the only road home) or where the plaintiff acted under necessity, rescue, or the protection of a statute enacted for her class. In contributory-negligence jurisdictions, implied assumption of risk is a complete bar. In comparative jurisdictions — the modern majority — implied assumption of risk has been largely merged into comparative fault: "secondary" implied assumption (unreasonably encountering a known risk) simply reduces damages, while "primary" implied assumption (the defendant owed no duty as to risks inherent in the activity — the foul ball at the baseball game, contact in a pickup hockey game) remains a complete defense because no duty was ever breached.

ESSAY WRITING TIP: Always classify the assumption-of-risk flavor before stating its effect: express (complete bar unless public policy), primary implied (no duty — complete bar), secondary implied (folded into comparative fault — mere reduction). Examiners reward the taxonomy.

VII. STRICT LIABILITY

A. Animals

Rule: The owner of a wild animal (not customarily domesticated in the region) is strictly liable for harm from the animal's dangerous propensities characteristic of its class, regardless of precautions — including harm from a victim's fearful reaction. The owner of a domestic animal is strictly liable only with knowledge or reason to know of that animal's abnormally dangerous propensities — the "one free bite" shorthand, though no prior bite is needed if viciousness was otherwise apparent; absent scienter, liability requires negligence. Many states have dog-bite statutes imposing strict liability without scienter. Trespassing livestock: strict liability for reasonably foreseeable damage (household pets excluded). Trespassers on the defendant's land generally cannot invoke strict liability for animal injuries — they must prove negligence (but a vicious watchdog kept as a deterrent triggers liability on the spring-gun analogy: no indirect force beyond what direct force would allow).

B. Abnormally Dangerous Activities

Rule: One who carries on an abnormally dangerous activity is strictly liable for resulting harm despite all possible care. Restatement (Second) §520 weighs six factors: (1) high degree of risk; (2) gravity of the threatened harm; (3) inability to eliminate the risk by reasonable care; (4) not a matter of common usage; (5) inappropriateness to the location; (6) value to the community outweighed by danger. The Restatement (Third) compresses to two parts: (1) a foreseeable and highly significant risk of physical harm even with reasonable care, and (2) not common usage. Classics: blasting and explosives, toxic-chemical transport and storage, fumigation, crop dusting, nuclear reactors. Abnormal danger is a question of law for the court. Scope limitation: liability extends only to harm from the characteristic risk, suffered by foreseeable plaintiffs — blasting vibrations that frighten mother mink into killing their kittens are outside it (Foster v. Preston Mill), and a dynamite truck's ordinary traffic collision sounds only in negligence.

Defenses: Traditionally, contributory negligence is no defense to strict liability (except where the plaintiff knowingly and unreasonably subjected herself to the risk), while assumption of risk is a complete defense. Modern comparative-fault jurisdictions typically reduce strict-liability recoveries by the plaintiff's comparative share.

MBE TIP: Watch for the defendant who exercised "utmost care" — in a strict-liability question that fact is a decoy; care is irrelevant. But the converse decoy also appears: strict liability fails when the harm is outside the characteristic risk or the plaintiff is unforeseeable, and then an answer keyed to negligence is the credited one. And remember the wording trap — common usage: ordinary driving, even of a gasoline tanker in most courts, is common usage; no strict liability.

VIII. PRODUCTS LIABILITY

A. The Five Theories — Overview

Rule: A plaintiff injured by a product may proceed on (1) intent (battery — the seller knew with substantial certainty the product would injure; rare, but punitive damages follow); (2) negligence; (3) strict products liability; (4) implied warranties of merchantability and fitness; and (5) express warranty and misrepresentation. Pick the theory by matching its proper-defendant, privity, and damages rules to the facts — the MBE constantly tests which theory survives when another fails.

B. Negligence

Rule: MacPherson v. Buick abolished the privity requirement: a manufacturer owes reasonable care to any foreseeable user, consumer, or bystander. The plaintiff must prove ordinary negligence — a failure of reasonable care in design, manufacture, inspection, or warning — and may use res ipsa against a manufacturer where the defect is of a type that bespeaks negligence. Retailers and wholesalers are rarely liable in negligence: they owe only a duty to inspect for defects of which they have reason to know (a cursory-inspection duty), so a middleman who innocently sells a sealed defective product is not negligent — but (foreshadowing) is strictly liable.

C. Strict Products Liability (Restatement (Second) §402A)

Rule: A commercial seller is liable without fault when (1) the defendant is a merchant routinely dealing in goods of this kind — every link in the chain: manufacturer, wholesaler, retailer, commercial lessors (rental-car companies) — (2) the product was defective (manufacturing, design, or warning), (3) the defect existed when the product left the defendant's control (presumed where it moved through ordinary channels unaltered), and (4) the plaintiff made a foreseeable use — including foreseeable misuse. No privity required: any foreseeable plaintiff — purchaser, user, bystander — may sue any commercial seller in the chain. Excluded defendants: casual one-off sellers, service providers (a hospital supplying blood; a dentist implanting a defective device renders a service), auctioneers, and — in most courts — sellers of used goods. Damages: personal injury and property damage; purely economic loss must be pursued in warranty.

Manufacturing defect: The unit departs from its intended design — it differs from all the others off the line and is more dangerous than consumers expect (the consumer-expectation test). Liability is genuinely strict: the plaintiff wins even if the defendant proves state-of-the-art quality control. Food cases use the same test (majority: a foreign-versus-natural inquiry has yielded to consumer expectation — a chicken bone in a chicken pot pie may still be a defect if consumers don't expect it).

Design defect: The whole product line is dangerous as designed. The Restatement (Second)/traditional approach asks whether the product is dangerous beyond the ordinary consumer's expectation; the Restatement (Third) and modern majority use risk-utility: the design is defective when its foreseeable risks could have been reduced by a reasonable alternative design (RAD) — safer, economically feasible, practical when marketed — whose omission renders the product not reasonably safe. Several states (notably California) allow either test. Government-standard compliance is evidence, not a shield (absent federal preemption); prescription drugs get a more defendant-protective test under the Third Restatement.

Warning defect (failure to warn): The product bears foreseeable risks of harm not obvious to an ordinary user that adequate warnings or instructions would have reduced, and none were given. No duty to warn of open and obvious dangers (knives cut). Adequacy is judged by prominence, comprehensibility, and intensity proportional to the risk. Plaintiffs get a "heeding presumption" in many states — a rebuttable presumption that an adequate warning would have been read and heeded, easing warning-causation. Learned-intermediary doctrine: a prescription-drug or medical-device manufacturer discharges its duty by adequately warning the prescribing physician, not the patient — with exceptions for direct-to-consumer-advertised drugs (a minority, led by New Jersey), mass immunizations, and contraceptives in some states.

Causation and defenses: The defect must be an actual and proximate cause; a product that malfunctions in a way that ordinarily results from a defect supports an inference of defect without proof of the specific flaw (the "malfunction theory," Restatement (Third) §3 — res ipsa's cousin). Defenses: (a) traditional rule — mere failure to discover or guard against the defect is no defense, while assumption of risk (knowingly and unreasonably proceeding despite a known defect) is a complete bar; (b) modern majority — comparative fault reduces recovery; (c) misuse, alteration, and modification defeat liability only when unforeseeable — foreseeable misuse (standing on a chair) must be designed and warned against; (d) disclaimers are ineffective against personal-injury claims in strict liability and negligence; (e) state-of-the-art compliance can defeat design/warning claims in many states, never manufacturing-defect claims.

EXAMPLE: P, a bystander, is injured when a new car's steering fails and it jumps the curb. P sues the retail dealer, who proves it received the car sealed from the factory and could not have discovered the defect. The dealer wins a negligence claim (no breach of the cursory-inspection duty) but loses in strict liability — every commercial seller in the chain is strictly liable, and the dealer's remedy is indemnity up the chain against the manufacturer.

D. Warranty and Misrepresentation Theories

Implied warranty of merchantability: A merchant dealing in goods of the kind warrants the goods fit for their ordinary purpose (UCC §2-314). Fitness for a particular purpose: any seller who knows the buyer's particular purpose and reliance on the seller's judgment warrants fitness for it (§2-315). Breach is no-fault; personal-injury, property, and economic damages are all recoverable — warranty is the only route for pure economic loss. Privity is relaxed by UCC §2-318 (Alternative A, most adopted, reaches the buyer's household and guests for personal injury). Warranty-specific hurdles: notice of breach within a reasonable time; disclaimers — but limiting personal-injury damages for consumer goods is prima facie unconscionable (§2-719(3)). Express warranty: an affirmation of fact or promise that becomes part of the basis of the bargain ("shatterproof"); no fault needed. Misrepresentation of fact (§402B): a commercial seller making a public material misrepresentation is strictly liable for physical harm to a justifiably relying consumer — without privity and without a "defect."

MBE TIP: When the plaintiff's only loss is that the product broke and is worthless — no person or other property harmed — the credited theory is warranty, never strict products liability or negligence. When the plaintiff never bought, used, or relied on anything (true bystander), strict products liability is the best theory because warranty privity substitutes may not reach him and negligence requires proving fault.

IX. NUISANCE

A. Private Nuisance

Rule: Private nuisance is a substantial and unreasonable interference with another's use and enjoyment of land that the plaintiff possesses or has a right to possess. Substantial means offensive, inconvenient, or annoying to an average person in the community — a hypersensitive plaintiff or an abnormally sensitive use of land (the mink farm, the drive-in theater darkened by ordinary lights) cannot ground a nuisance. Unreasonable means the gravity of the harm outweighs the utility of the defendant's conduct (the Restatement balancing test), or the harm is severe and greater than the plaintiff should bear without compensation. Nuisance describes the interest invaded, not the defendant's conduct: the interference may be founded on intentional conduct (the usual case — the defendant continues with knowledge of the interference), negligence, or an abnormally dangerous activity. Distinguish trespass (invasion of the right to exclusive possession by tangible entry) from nuisance (interference with use and enjoyment — noise, odors, light, vibration, smoke).

B. Public Nuisance and Remedies

Public nuisance: An unreasonable interference with a right common to the general public — health, safety, peace, or convenience (blocking a highway, polluting a public water supply, running a gambling den). Enforcement belongs to public authorities; a private plaintiff may sue only by proving harm different in kind, not merely degree, from that suffered by the public (the fisherman whose livelihood is destroyed by the polluted bay, versus citizens merely inconvenienced).

Remedies and defenses: The usual remedy is damages; an injunction issues only where damages are inadequate, and courts balance the equities — relative hardship, value of the defendant's activity, community interests (Boomer v. Atlantic Cement: permanent damages in lieu of closing the plant) — though not in favor of a willful wrongdoer. Self-help abatement of a private nuisance is privileged after notice and refusal, with reasonable force; a private citizen may abate a public nuisance only with the special, different-in-kind injury. Defenses: zoning or permit compliance is persuasive but not conclusive; contributory fault matters only for negligence-based nuisance; "coming to the nuisance" is not an absolute bar (majority) — merely one factor, unless the plaintiff moved in solely to manufacture a lawsuit.

ESSAY WRITING TIP: Nuisance essays are balancing essays. After stating the elements, actually weigh: character of the neighborhood, who was there first, social value of each use, feasibility of abatement, severity and duration of the harm. A conclusion either way scores if the weighing is shown.

X. VICARIOUS LIABILITY AND MULTIPLE-DEFENDANT ISSUES

A. Respondeat Superior

Rule: An employer is vicariously liable for employee torts within the scope of employment — conduct of the kind hired for, substantially within authorized time and space, actuated at least in part by a purpose to serve the employer. The liability is strict as to the employer but derivative: if the employee is exonerated, the claim fails. Frolic versus detour: a minor deviation for personal reasons (a "detour" — two blocks off-route for coffee) stays within the scope; a major deviation in time, geography, or purpose (a "frolic") is outside it until the employment resumes. Ordinary commuting is outside the scope. Intentional torts are generally outside the scope except where (a) force is inherent in the work (bouncer, repo agent), (b) the employee acts to further the employer's business, however misguidedly, or (c) the employer authorized or ratified the act. Where vicarious liability fails, check the employer's direct liability for negligent hiring, retention, supervision, or entrustment — a separate fault-based claim that survives frolics and reaches independent contractors (the employer knew or should have known of dangerous propensities). Keep the two theories rigorously distinct.

B. Independent Contractors and Nondelegable Duties

Rule: A hiring party is not vicariously liable for the torts of an independent contractor — one whose manner and method of work the principal does not control (control of the details is the touchstone of employee status). Exceptions: (1) inherently dangerous activities (excavation beside a sidewalk, blasting, crop dusting) — the peculiar risk cannot be delegated; (2) other nondelegable duties imposed by law or public policy: a business's duty to keep premises safe for invitees (the storekeeper is liable for the contractor's negligent floor work), a landowner's duty regarding work on land affecting the public way, a motorist's duty to keep brakes in working order (the negligent brake shop's fault is attributed to the owner in many states), and duties imposed by statute or franchise; (3) apparent agency/estoppel — a principal who holds a contractor out as its employee (the hospital ER physician problem) is liable to those who reasonably rely; and (4) the principal's own negligent selection of an incompetent contractor (direct liability). The traditional rule also denies the contractor exception's protection where the employer retains control over the injurious aspect of the work.

C. Other Vicarious Relationships

Joint enterprise: Requires (1) an agreement, (2) a common purpose, (3) a community of pecuniary interest, and (4) an equal right of control; members are vicariously liable for each other's negligence within the enterprise's scope — a social car trip fails the pecuniary element. Automobile owners: no common-law vicarious liability for a permissive driver; inroads include permissive-use ("owner consent") statutes and the family-car doctrine (household members driving with permission for family purposes); everywhere, the owner is directly liable for negligent entrustment to a driver known to be incompetent, reckless, or intoxicated (the doctrine reaches any dangerous instrumentality). Parents are not vicariously liable at common law for children's torts; most states impose capped statutory liability for children's willful or malicious torts; parents are directly liable for negligent supervision or entrustment given a child's known dangerous propensities. Tavernkeepers: no common-law liability for serving the drunk who later injures another; many states impose it by dramshop act (service to the visibly intoxicated or minors); social hosts are generally not liable except, in some states, for serving minors. Bailors are not vicariously liable for bailees' torts.

D. Joint and Several Liability, Contribution, and Indemnity

Joint and several liability: Where tortfeasors (a) act in concert, (b) fail in a common duty, or (c) independently cause a single indivisible harm, each is liable for the entire judgment; the plaintiff may collect all from any one (only one full satisfaction). Where the harm is divisible by causation, each pays only his portion. Majority/minority flag: tort-reform statutes have abolished or limited full joint and several liability in most states (pure several liability, hybrid thresholds, several-only for non-economic damages); the MBE applies traditional joint and several liability unless told otherwise. A release of one tortfeasor no longer releases the others (majority) — it reduces the claim by the consideration paid or the released party's share.

Contribution: A defendant who pays more than his fair share of a joint-and-several judgment may recover the excess from co-tortfeasors. The majority apportions contribution by comparative fault; the traditional minority divides pro rata (equal shares). Contribution is unavailable to intentional tortfeasors and unavailable against anyone immune from the plaintiff's suit (e.g., an immune employer under workers' compensation).

Indemnity: A complete shifting of the loss to the truly responsible party, available (1) to one held only vicariously liable (employer against employee, owner against driver), (2) to innocent downstream sellers in strict products liability against the manufacturer (the retailer recovers everything up the chain), (3) by contract, and (4) in retained traditional pockets, to a "passive" or secondarily negligent party against the "active" wrongdoer — a doctrine most comparative-fault states have replaced with comparative contribution.

MBE TIP: Compute money questions in two steps — first the plaintiff's recovery (reduce by her comparative share; collect from any defendant under joint and several liability), then the defendants' internal accounting (contribution by comparative shares; full indemnity if one was only vicariously or strictly-derivatively liable). The wrong answers always blend the two steps.

XI. DEFAMATION

A. The Common-Law Prima Facie Case

Rule: Defamation requires (1) a defamatory statement — tending to harm reputation in the community's esteem — (2) of and concerning the plaintiff, (3) published to at least one third person who understood it, and (4) damage (presumed or proved, per below); constitutional law adds (5) falsity and (6) fault when the matter is of public concern. Only statements of fact (or opinions implying undisclosed defamatory facts — Milkovich) are actionable; pure opinion, hyperbole, and name-calling are not. Facially innocent statements become defamatory through inducement and innuendo; an unnamed plaintiff is identified by colloquium. Group defamation: small-group members may sue; members of large groups ("all lawyers are crooks") may not. Only living persons can be defamed, though corporations may sue for harm to business reputation. Publication must be intentional or negligent — an overheard remark counts only if overhearing was foreseeable; the speaker answers for foreseeable republication, each republisher is independently liable (knowledge-based limits protect secondary distributors), and the plaintiff's own repetition is no publication (absent the minority compelled self-publication doctrine).

B. Libel, Slander, and Slander Per Se

Rule: Libel is defamation in written or otherwise permanent form (including, by the majority view and statute, radio and television broadcasts); general (reputational) damages are presumed at common law — no proof of pecuniary loss needed (a minority distinguishes libel per quod — libel needing extrinsic facts — and requires special damages for it unless it falls in a per se category). Slander is spoken, transitory defamation; the plaintiff must plead and prove special damages — specific pecuniary loss (a lost job, a lost sale, a lost inheritance; social ostracism and hurt feelings do not count) — unless the statement is slander per se, falling into four categories: (1) imputation of criminal conduct involving moral turpitude or infamous punishment; (2) a presently existing loathsome disease (venereal disease, historically leprosy); (3) statements incompatible with the plaintiff's business, trade, profession, or office (the most-tested category — the matter must relate to fitness for the calling); and (4) serious sexual misconduct (traditionally unchastity of a woman). For slander per se and ordinary libel, once liability is otherwise established, general damages are presumed — subject to the constitutional overlay next.

C. Constitutional Fault Requirements

Rule: The First Amendment grafts fault and falsity onto the common law. Public officials and public figures (general-purpose, or limited-purpose figures who thrust themselves into a particular controversy) must prove actual malice — knowledge of falsity or reckless disregard of the truth (subjective serious doubts), by clear and convincing evidence (New York Times v. Sullivan). Private plaintiffs suing on matters of public concern must prove at least negligence as to falsity and may recover only damages for proved actual injury (which includes reputational and emotional harm, not just pecuniary); presumed and punitive damages require actual malice (Gertz). Private plaintiffs on matters of purely private concern may recover presumed and punitive damages without actual malice (Dun & Bradstreet); states set the fault floor, and most require negligence even here (a few retain common-law strict liability). When the speech involves a matter of public concern, the plaintiff bears the burden of proving falsity (Hepps) — truth is no longer merely a defense.

MBE TIP: Build the grid: (1) public plaintiff → actual malice, always. (2) Private plaintiff + public concern → negligence for actual damages; malice for presumed/punitive. (3) Private plaintiff + private concern → presumed damages without malice. The most common wrong answer gives a private figure the actual-malice burden or lets a public figure recover on mere negligence.

D. Defenses and Privileges

Rule: Truth (substantial truth — the "gist" or "sting" is accurate) defeats the claim wherever the common-law burden persists; consent is a complete defense. Absolute privileges — unaffected by malice — cover (1) participants in judicial proceedings (if reasonably related to the proceeding); (2) legislative proceedings (no relevance requirement); (3) certain executive officials in official duties; (4) statements between spouses; and (5) compelled broadcasts. Qualified (conditional) privileges protect statements reasonably furthering a legitimate interest: the publisher's own interests, the recipient's or a third party's interests (the classic employment reference), common-interest communications, reports to authorities about crime, and the fair-report privilege for accurate accounts of official proceedings (plus common-law fair comment on public matters). A qualified privilege is lost by abuse: exceeding the scope of the interest, excessive publication, or actual malice/lack of honest belief. The defendant proves the privilege; the plaintiff proves abuse.

EXAMPLE: A former employer tells a prospective employer, honestly but mistakenly, that the plaintiff was fired for theft. The statement is slander per se (trade or profession) and false — but the employment-reference qualified privilege defeats liability unless the plaintiff proves the employer spoke with knowledge of falsity, reckless disregard, or for a purpose outside the reference context.

XII. PRIVACY TORTS

A. The Four Branches

Rule: (1) Intrusion upon seclusion: an intentional intrusion — physical or otherwise (wiretaps, telephoto lenses, hacking) — into the plaintiff's private affairs or seclusion, highly offensive to a reasonable person; requires a reasonable expectation of privacy (no claim for photos in public view), and no publication is required — the snooping itself is the tort. (2) Appropriation of name or likeness: unauthorized use of the plaintiff's identity for the defendant's commercial advantage — advertising or trade purposes; the newsworthiness exception shields news, biography, and commentary even for profit. Many states add a descendible "right of publicity." (3) Public disclosure of private facts: publicity (widespread dissemination, not one third person) given to true private facts, highly offensive and not of legitimate public concern; truth is no defense, but public-record and newsworthy facts are not actionable. (4) False light: publicity placing the plaintiff in a false light highly offensive to a reasonable person — falsity need not be defamatory (falsely heroic portrayals qualify); on matters of public interest, Time v. Hill requires actual malice; a minority of states reject false light as redundant of defamation. Common features: privacy rights are personal — no corporate claims, no survival after death (except statutory publicity rights); consent defends all four; the defamation privileges apply to the publication-based branches; damages need not be pecuniary.

MBE TIP: Sort by two questions — was anything communicated? (No → intrusion.) Was it false? (Yes → false light, and compare defamation; No → disclosure or appropriation, and ask whether the use was commercial.) The favorite trap: truthful but embarrassing revelations — defamation fails (truth), but public disclosure of private facts succeeds if publicity, offensiveness, and lack of newsworthiness line up.

XIII. ECONOMIC AND DIGNITARY TORTS

A. Fraudulent Misrepresentation (Deceit)

Rule: (1) A misrepresentation of a material past or present fact (not opinion, prediction, or puffery — except opinions by those with superior knowledge or expertise); (2) scienter — knowledge of falsity or reckless disregard for truth; (3) intent to induce reliance by the plaintiff or her class; (4) actual, justifiable reliance (no general duty to investigate); and (5) pecuniary damages — actual economic loss, measured in most states by the benefit of the bargain. Nondisclosure is generally not actionable — silence is permitted — except with a fiduciary relationship, active concealment, a half-truth, or new information falsifying a prior statement. There are effectively no defenses: contributory negligence in believing the lie is irrelevant.

Negligent misrepresentation: A false statement made without reasonable care in a commercial or professional setting (accountants, surveyors, title abstractors), with justifiable reliance and pecuniary loss. Liability is confined — Restatement (Second) §552 — to the limited group of persons the defendant intended or knew would receive and rely on the information for a known transaction; the world at large cannot sue (the accountant-liability splits range from near-privity (Ultramares, New York) to the Restatement's known-user rule (majority) to broad foreseeability (small minority)).

B. Interference with Business Relations

Rule: Intentional interference with contract requires (1) a valid contract between the plaintiff and a third party (not terminable-at-will for the strongest form, and never a contract void as illegal), (2) the defendant's knowledge of it, (3) intentional acts inducing breach or making performance impossible/more burdensome, and (4) damages. Interference with prospective economic advantage protects pre-contract expectancies (prospective customers) on similar elements but with far broader privileges. Privileges/justifications: fair competition privileges interference with prospective relations and at-will contracts — but never inducing breach of an existing binding contract; defendants may also protect their own existing economic interests, give honest requested advice (the lawyer, the banker), and act in a protected relationship with the breaching party. Improper means — fraud, defamation, threats — defeat any privilege.

C. Malicious Prosecution and Abuse of Process

Malicious prosecution: (1) Institution of criminal proceedings against the plaintiff (a knowingly false report counts; honest information does not); (2) termination in the plaintiff's favor on the merits (not plea bargains or procedural technicalities); (3) absence of probable cause; (4) an improper purpose ("malice" — any purpose other than bringing an offender to justice; inferable from lack of probable cause); (5) damages. Prosecutors are absolutely immune. Most states extend the tort to wrongful civil proceedings (a minority adds a special-injury requirement). Abuse of process: the use of legitimate legal process for an ulterior purpose plus a definite act or threat to accomplish it (attaching property to coerce payment of an unrelated debt). Probable cause and favorable termination are irrelevant — the process may be well-founded; the tort is its weaponization.

ESSAY WRITING TIP: When a fact pattern has litigation used as leverage, run both torts: malicious prosecution fails if the underlying case had probable cause or hasn't terminated favorably, but abuse of process can still succeed if process was used as extortionate leverage. Stating why one fails and the other survives is where the points are.

XIV. WRONGFUL DEATH, SURVIVAL, IMMUNITIES, AND CONSORTIUM

A. Wrongful Death and Survival Actions

Rule: Both are creatures of statute — at common law, tort claims died with the parties. A wrongful death act creates a new claim for designated beneficiaries (spouse, children, sometimes parents) to recover their own losses from the death: pecuniary loss of support and services, and in most modern statutes loss of companionship and society; creditors of the estate have no claim on the proceeds. A survival act preserves the decedent's own existing claims — pain and suffering before death, medical expenses, lost earnings to death — prosecuted by the estate (many states exclude survival of the purely personal torts: defamation and the privacy torts die with the plaintiff). Derivative limits: recovery in both actions is subject to whatever defenses the tortfeasor had against the decedent — the decedent's comparative fault, assumption of risk, or a settlement/judgment during life reduces or bars the claims; a beneficiary's own contributory fault reduces or bars only that beneficiary's share.

B. Tort Immunities

Governmental: The United States is immune except as waived by the Federal Tort Claims Act, which permits negligence claims but preserves immunity for (a) discretionary functions (planning-level policy judgments — ministerial, operational acts remain actionable), (b) most intentional torts (except those committed by federal law-enforcement officers), and (c) strict liability. States have mostly waived immunity by statute; municipalities are traditionally immune for governmental functions (police, fire, courts) but not proprietary functions (utilities, parking garages), and the public-duty doctrine holds that a duty owed to the public at large is owed to no one individually, absent a special relationship (specific promise plus reliance). Government officers: immunity for good-faith discretionary acts, none for ministerial acts.

Charitable and intra-family: Charitable immunity is abolished in the great majority of states (a few retain caps or partial immunity). Spousal ("interspousal") immunity is abolished nearly everywhere — spouses may sue each other in tort. Parent-child immunity persists in weakened form: most states have abrogated it for automobile cases (often to the extent of insurance), intentional torts, and sexual abuse, but many retain a core immunity (or a special "reasonable parent" standard) for the exercise of parental authority and discretion — discipline, supervision, and the provision of care.

C. Loss of Consortium

Rule: When a tortfeasor injures one spouse, the uninjured spouse has an independent claim for loss of consortium — loss of the injured spouse's services, society, companionship, and sexual relations. The claim is derivative: every defense good against the injured spouse (comparative fault, assumption of risk, immunity) reduces or bars the consortium claim as well. Most states deny consortium-type claims to unmarried cohabitants; a minority extend parallel claims to parents for injury to a child (loss of services is the traditional parental claim) and a smaller minority to children for injury to a parent. The same derivative logic governs a parent's claim for a child's medical expenses.

MBE TIP: "Derivative" is the testing point — if the physically injured family member was 40% at fault in a pure comparative jurisdiction, the consortium plaintiff's recovery is reduced 40% too, and if the injured member's claim is barred entirely, consortium falls with it.

XV. THE TORTS ATTACK PLAN

1. Classify the theory first. Read the call of the question: intentional tort, negligence, strict liability, products, or a dignitary/economic tort? Multiple theories often coexist on one set of facts — answer the one the call asks about, and remember the MBE defaults: pure comparative negligence, traditional joint and several liability, majority common-law rules unless the stem specifies otherwise.

2. For intentional torts, march the elements: volitional act → intent (purpose or substantial certainty; check transferred intent among the five trespass torts) → the tort-specific elements (contact / apprehension / confinement / outrageousness / entry / interference) → causation. Then run every applicable privilege: consent (scope!), self-defense and its proportionality, defense of property (never deadly force), recapture (hot pursuit), shopkeeper's privilege (three reasonables), and necessity (public absolute, private pays actual damages).

3. For negligence, never skip a step: duty → breach → actual cause → proximate cause → damages → defenses. The wrong answers are engineered to reward element-skipping — a clear breach with no causation, a foreseeable plaintiff with no damages.

4. At duty, fix the standard of care before anything else. Default reasonably prudent person; then check for a child (like age/intelligence/experience — unless an adult activity), a professional (custom is conclusive; physicians: national standard, informed consent), a landowner (status categories: trespasser / licensee / invitee — or the unitary reasonable-care approach if the question says so), a statute (negligence per se: class of persons, type of harm, excuses), or an affirmative-duty problem (no duty to rescue absent special relationship, creation of peril, or undertaking).

5. At breach, ask what a jury could find: identify the specific conduct, weigh burden against probability-times-gravity, treat custom as evidence (conclusive only for professionals), and reach for res ipsa when the plaintiff cannot identify what went wrong but the accident type and the defendant's control speak for themselves.

6. At causation, run both halves. But-for first; if multiple sufficient causes, substantial factor; if two negligent actors and one unknown bullet, Summers burden-shifting; fungible products, market share. Then proximate cause: was this type of harm within the risk? Classify every intervening force as foreseeable (medical malpractice, rescuers, ordinary negligence — chain holds) or superseding (unforeseeable crime, act of God — chain breaks), and never let an answer choice win on unforeseeable extent (eggshell skull).

7. At damages and defenses, do the arithmetic. Actual harm required; apply the collateral source rule and avoidable consequences; then apportion — identify the comparative regime, compute the plaintiff's reduced recovery, apply joint and several liability for collection, and finish with contribution (comparative shares) and indemnity (vicarious or strict-products defendants shift everything).

8. For strict liability and products, identify the trigger and the proper defendant. Wild animal, known-vicious domestic animal, or abnormally dangerous activity (can't-be-made-safe + uncommon) → strict liability limited to the characteristic risk. Product case → confirm a commercial seller, a defect (manufacturing/consumer expectation; design/risk-utility and reasonable alternative design; warning/learned intermediary), existence of the defect at sale, and foreseeable use — then sweep defenses (unforeseeable misuse, alteration, comparative fault, disclaimers ineffective).

9. For defamation and privacy, build the constitutional grid before touching damages. Status of plaintiff (public/private) × subject matter (public/private concern) → fault (actual malice or negligence) and available damages (presumed or proved). Then privileges: absolute (judicial, legislative, spousal) versus qualified (references, common interest, fair report) and whether abuse destroyed them. For privacy, pick the branch by asking what was communicated, whether it was false, and whether the use was commercial.

10. Close every answer by checking parties and survival. Is liability personal, vicarious (scope of employment, frolic/detour, nondelegable duty), or direct (negligent hiring/entrustment)? Is the claim derivative (consortium, wrongful death — subject to the victim's defenses)? Is anyone immune (discretionary functions, parental discretion)? The last fifty words of a Torts fact pattern usually exist to trigger one of these closing checks — find it, and the credited answer follows.

Related

➡ Torts One-Page Cheat Sheet
➡ California Torts Distinctions