Tort Law Essentials

Master the fundamentals of tort law with free flashcards and active recall practice. This lesson covers intentional torts, negligence, strict liability, and defenses—essential concepts for the U.S. Bar Exam and legal practice.

Welcome to Tort Law ⚖️

Tort law is one of the most heavily tested subjects on the U.S. Bar Exam, and for good reason—it forms the foundation of civil litigation practice. A tort is a civil wrong that causes harm to another person, giving the injured party the right to seek compensation through the legal system. Unlike criminal law (which punishes wrongdoers), tort law aims to make victims whole by awarding damages.

In this comprehensive lesson, you'll learn the three main categories of torts, the elements required to establish liability, key defenses, and how to analyze fact patterns like an experienced attorney. Whether you're preparing for the bar exam or strengthening your legal reasoning skills, this lesson will equip you with the analytical framework needed to succeed.

💡 Tip: Think of torts as the legal system's way of answering: "When someone hurts me (physically, financially, or emotionally), can I sue them and recover money?"

Core Concepts in Tort Law 📚

The Three Categories of Torts

Tort law divides civil wrongs into three main categories, each with different standards for establishing liability:

Category	Mental State Required	Key Feature	Example
Intentional Torts	Intent or knowledge to substantial certainty	Defendant desired the result or knew it would occur	Battery, assault, false imprisonment
Negligence	Failure to exercise reasonable care	Defendant was careless but didn't intend harm	Car accidents, medical malpractice
Strict Liability	No mental state required	Liability regardless of intent or care	Defective products, abnormally dangerous activities

Intentional Torts: When Defendants Act on Purpose 🎯

Intentional torts require that the defendant either desired to cause the harmful result OR knew to a substantial certainty that the result would occur. You don't need to prove the defendant intended harm—only that they intended the act that caused harm.

Battery

Battery occurs when the defendant causes harmful or offensive contact with the plaintiff's person. The contact must be intentional, but the defendant doesn't need to intend harm—only the contact itself.

Elements of Battery:

1. Intent to cause contact
2. Harmful or offensive contact with plaintiff's person
3. Causation between defendant's act and the contact

💡 Memory Device - BATT:

• Bad touch
• Actual contact required
• Touching without consent
• Tangible, not just words

🤔 Did you know? Battery extends to anything connected to your person. Knocking a plate out of someone's hand, pulling a chair out from under them, or even touching their purse while they're holding it can constitute battery!

Assault

Assault is the apprehension of imminent harmful or offensive contact. No actual contact is required—the victim just needs to reasonably expect contact is about to happen.

Elements of Assault:

1. Intent to cause apprehension of contact
2. Reasonable apprehension of imminent harmful/offensive contact
3. Apparent ability to carry out the threat

⚠️ Critical Distinction: Assault requires apprehension, not fear. Even a black belt karate expert can be assaulted if they're aware contact is imminent—they don't need to be scared, just aware.

False Imprisonment

False imprisonment occurs when the defendant intentionally confines the plaintiff within boundaries fixed by the defendant.

Elements:

1. Intent to confine
2. Actual confinement in a bounded area
3. Plaintiff's awareness of confinement OR harm from confinement
4. No reasonable means of escape

🌍 Real-world analogy: Think of a store security guard who locks a suspected shoplifter in a back room without legal authority. Even if the person isn't physically restrained, blocking all exits creates confinement.

Intentional Infliction of Emotional Distress (IIED)

IIED (also called "outrage") occurs when extreme and outrageous conduct intentionally or recklessly causes severe emotional distress.

Elements:

1. Extreme and outrageous conduct (beyond all bounds of decency)
2. Intent or reckless disregard
3. Causation
4. Severe emotional distress

💡 The "Gasp Test": Courts often ask whether reasonable people would gasp in shock at the defendant's behavior. Ordinary insults, rudeness, or even cruel jokes typically don't qualify.

Negligence: The Most Common Tort Claim ⚠️

Negligence accounts for the vast majority of tort lawsuits. It occurs when someone fails to exercise reasonable care and causes injury as a result.

Elements of Negligence - Remember "DICE":

┌─────────────────────────────────────┐
│         NEGLIGENCE: DICE            │
├─────────────────────────────────────┤
│                                     │
│  D → Duty of care                   │
│  I → breach (vIolation)             │
│  C → Causation (actual & proximate) │
│  E → damagEs (actual harm)          │
│                                     │
│  ALL FOUR required to win!          │
└─────────────────────────────────────┘

1. Duty of Care

The defendant must owe the plaintiff a legal duty to conform to a certain standard of conduct. The general rule is that everyone owes a duty of reasonable care to foreseeable plaintiffs.

The Reasonable Person Standard: Would a hypothetical reasonable person of ordinary prudence, acting under similar circumstances, have acted as the defendant did?

Special Duty Rules:

• No general duty to rescue: You don't have to help strangers in peril (unless you created the peril)
• Landowners: Duty varies based on plaintiff's status (invitee, licensee, or trespasser)
• Professionals: Held to the standard of their profession (doctors to medical standards, lawyers to legal standards)
• Children: Held to the standard of a reasonable child of similar age, intelligence, and experience (exception: adult activities like driving)

🔧 Try this: When analyzing duty, always ask: "Was this plaintiff in the zone of foreseeable danger from defendant's conduct?"

2. Breach of Duty

The defendant must fail to meet the applicable standard of care. This is usually determined by asking: "What would a reasonable person have done in these circumstances?"

Ways to Prove Breach:

• Direct evidence: Eyewitness testimony, video footage
• Circumstantial evidence: The facts themselves suggest carelessness
• Negligence per se: Violation of a safety statute (if plaintiff is in the protected class and suffered the type of harm the statute was designed to prevent)
• Res ipsa loquitur: "The thing speaks for itself"—when the accident wouldn't normally happen without negligence

💡 Res Ipsa Loquitur Requirements:

1. Accident doesn't normally happen without negligence
2. Defendant had exclusive control of the instrumentality
3. Plaintiff didn't contribute to the accident

3. Causation

Causation has two components, and the plaintiff must prove BOTH:

Actual Cause (Cause-in-Fact): "But for" the defendant's breach, would the harm have occurred?

• Test: Remove the defendant's conduct mentally; if the harm disappears, actual causation exists
• Alternative test for multiple sufficient causes: Was defendant's conduct a "substantial factor" in causing the harm?

Proximate Cause (Legal Cause): Was the harm a foreseeable result of the defendant's conduct?

• Limits liability to consequences that aren't too remote or bizarre
• Intervening causes may break the chain of causation (unless foreseeable)
• Eggshell plaintiff rule: Take your victim as you find them—defendant liable even if plaintiff was unusually fragile

CAUSATION CHAIN ANALYSIS

Defendant's Act  →  Breach  →  Injury
      ↓                         ↑
   "But for"              Foreseeable?
    this act              (proximate)
      ↓                         ↑
  Would harm    ←──[YES]───  Connection
   have occurred?            not too remote

4. Damages

The plaintiff must prove actual harm or injury. No harm = no case, even if the defendant was careless.

Types of Damages:

• Compensatory: Designed to make plaintiff whole (medical bills, lost wages, pain and suffering)
• Punitive: Punishment for especially egregious conduct (rare in negligence, more common in intentional torts)

⚠️ Critical Rule: Negligence requires actual damages. You cannot sue for negligence based on "almost got hurt" or pure economic loss without accompanying physical injury or property damage.

Strict Liability: No Fault Required 🔥

Strict liability means the defendant is liable regardless of intent or care taken. Even if the defendant exercised utmost caution, liability attaches if harm occurs.

Two Main Categories:

1. Abnormally Dangerous Activities

Activities that:

• Create a foreseeable and highly significant risk of physical harm
• Cannot be performed without risk even with utmost care
• Are not commonly engaged in the community

Classic examples: Storing explosives, keeping wild animals, using toxic chemicals, blasting/demolition

💡 Policy rationale: If you're engaging in ultrahazardous activities that benefit you, you should bear the cost of any harm—even if you're careful.

2. Products Liability

Manufacturers and sellers are strictly liable for defective products that cause injury.

Three Types of Defects:

Defect Type	Definition	Example
Manufacturing	Product differs from design specs	One contaminated can in an otherwise safe product line
Design	Entire product line has dangerous design	SUV with high center of gravity prone to rollovers
Warning	Inadequate instructions or warnings	Medication without disclosure of serious side effects

Elements of Products Liability:

1. Defendant is a commercial supplier
2. Product was defective when it left defendant's control
3. Defect caused plaintiff's injury
4. Plaintiff was using the product in a foreseeable way

Defenses to Tort Claims 🛡️

Even when a plaintiff proves all elements, defendants can raise defenses to avoid or reduce liability.

Defenses to Intentional Torts

1. Consent

• Express consent: Plaintiff explicitly agreed (verbal or written)
• Implied consent: Circumstances suggest consent (participating in contact sports)
• Limitations: Consent invalid if obtained by fraud, duress, or exceeds scope of consent

2. Self-Defense

• May use reasonable force to protect against imminent threat
• Force must be proportional to the threat
• Cannot use deadly force to protect property alone

3. Defense of Others

• Same rules as self-defense
• Can defend third parties from harm
• Majority rule: Step into shoes of person defended (if they had no right to self-defense, you don't either)

4. Defense of Property

• May use reasonable force to prevent intrusion or dispossession
• Cannot use deadly force
• Cannot use mechanical devices (like spring guns) that would be excessive if used personally

5. Necessity

• Public necessity: Act to protect community (complete defense)
• Private necessity: Act to protect your own interests (incomplete defense—liable for actual damage but not trespass)

🌍 Real-world example: If you're sailing during a storm and must dock at someone's private pier to save your life, that's private necessity. You're not liable for trespass, but you must pay for any damage to the pier.

Defenses to Negligence

1. Contributory Negligence (minority rule, only 4 states)

• If plaintiff was even 1% at fault, complete bar to recovery
• Harsh rule largely abandoned

2. Comparative Negligence (majority rule)

• Pure comparative: Plaintiff recovers even if 99% at fault (damages reduced by their percentage)
• Modified comparative: Plaintiff recovers only if less than 50% (or 51%) at fault

System	Plaintiff's Fault	Can Plaintiff Recover?	Recovery Amount
Contributory	1%	No	$0
Pure Comparative	70%	Yes	30% of damages
Modified Comparative	40%	Yes	60% of damages
Modified Comparative	60%	No	$0

3. Assumption of Risk

• Plaintiff voluntarily encountered a known risk
• Express: Signed waiver or release
• Implied: Conduct shows acceptance of risk (e.g., attending baseball game and sitting where foul balls may land)
• Requirement: Plaintiff must have actual knowledge and appreciation of the specific risk

⚠️ Common misconception: Assumption of risk doesn't mean accepting ALL risks—only the specific risks inherent in the activity. A baseball fan assumes the risk of foul balls but not the risk that the stadium's railing will collapse.

Detailed Examples with Analysis 📝

Example 1: Battery with Transferred Intent

Fact Pattern: Dan throws a rock at Victor, intending to hit him. Victor ducks, and the rock hits Paula, who was standing nearby and suffered a concussion.

Analysis:

• Intent: Dan intended to cause harmful contact with Victor (battery)
• Contact: Paula suffered harmful contact
• Transferred Intent Doctrine: Intent to commit a tort against one person transfers to the actual victim
• Result: Dan is liable to Paula for battery, even though he intended to hit Victor

💡 Key Principle: Transferred intent works among the five "BAFTT" torts: Battery, Assault, False imprisonment, Trespass to land, Trespass to chattels. Intent transfers both from person to person and from tort to tort.

Why this matters for the Bar Exam: Transferred intent questions are extremely common. Remember: If defendant intended any of the BAFTT torts against anyone, that intent transfers to whatever BAFTT tort actually occurred to whoever was actually harmed.

Example 2: Negligence with Proximate Cause Issue

Fact Pattern: Railroad Company negligently stores flammable materials near the tracks. A train passes by and a spark ignites the materials, causing an explosion. The blast wave knocks over a scale 50 feet away, and the falling scale injures Plaintiff, who was standing nearby.

Analysis (based on the famous Palsgraf v. Long Island Railroad):

• Duty: Did Railroad owe Plaintiff a duty? This depends on foreseeability.
• Foreseeable plaintiff test: Was Plaintiff in the foreseeable zone of danger from storing flammables?
  • Foreseeable that flammables might explode: YES
  • Foreseeable that explosion might hurt people nearby: YES
  • Foreseeable that the specific chain of events (blast wave → scale falls → hits plaintiff): Debatable

Two Approaches:

1. Cardozo approach (majority): Duty extends only to foreseeable plaintiffs. If Plaintiff wasn't in foreseeable zone of danger from the original negligent act, no duty, no liability.
2. Andrews approach (minority): Duty runs to the world at large. If defendant was negligent to anyone, it's negligent to everyone harmed—question becomes one of proximate cause.

Likely Result: Railroad probably liable. While the specific mechanism was unusual, it's foreseeable that exploding flammables would injure people in the vicinity.

🔧 Bar Exam Strategy: When you see unusual chain of events, always discuss both actual and proximate causation separately. Ask: "But for the negligence, would harm have occurred?" (actual cause), then "Was this result within the scope of foreseeable risks?" (proximate cause).

Example 3: Strict Liability for Wild Animals

Fact Pattern: Owner keeps a pet tiger on her property. She builds a secure enclosure and takes every precaution. One day, Tiger escapes through no fault of Owner (a delivery driver left the gate open). Tiger mauls Neighbor.

Analysis:

• Rule: Strict liability applies to possession of wild animals
• Wild vs. Domestic: Tigers are wild animals regardless of training or docility
• Owner's care irrelevant: Even though Owner exercised utmost care, strict liability applies
• Causation: Tiger's escape and attack must cause the harm (satisfied here)
• Defense: Neighbor's assumption of risk or contributory negligence might reduce liability in some jurisdictions

Result: Owner is strictly liable to Neighbor. The delivery driver's negligence doesn't break the chain of causation—Owner bears the risk of keeping dangerous animals.

🤔 Did you know? The distinction between wild and domestic animals can be counterintuitive. A deer raised from birth as a pet is still "wild" for legal purposes, while a dog (even a vicious one) is "domestic." For domestic animals, owner is liable only if they knew or should have known of the animal's dangerous propensities (the "one free bite" rule).

Example 4: Products Liability Manufacturing Defect

Fact Pattern: Consumer buys a ladder from Retailer, manufactured by Manufacturer. Due to a defect in the manufacturing process, one of the 10,000 ladders produced has a weakened rung. Consumer stands on the weakened rung, it breaks, and Consumer falls and is injured.

Analysis:

• Type of defect: Manufacturing (this particular ladder differs from design specifications)
• Strict liability elements:
  1. Commercial supplier: YES (Manufacturer and Retailer are in the business)
  2. Defective when it left defendant's control: YES (weak rung existed when manufactured)
  3. Caused injury: YES (weak rung caused fall)
  4. Foreseeable use: YES (using ladder to climb is normal use)

Who is liable?: Both Manufacturer and Retailer can be held strictly liable. Consumer can sue either or both.

Potential defenses:

• Product alteration: If someone modified the ladder after purchase, might break chain of causation
• Misuse: If Consumer was using ladder in bizarre, unforeseeable way (but normal climbing isn't misuse)
• Comparative fault: Some jurisdictions allow comparing Consumer's negligence to reduce damages

💡 Practical tip: In products liability cases, identify whether it's a manufacturing defect (one-off problem), design defect (whole product line is dangerous), or warning defect (inadequate instructions). Each has different analysis.

Common Mistakes to Avoid ⚠️

Mistake #1: Confusing Intent for Intentional Torts

❌ Wrong thinking: "Defendant didn't intend to hurt plaintiff, so it can't be battery."

✅ Correct thinking: For intentional torts, you only need intent to do the act that caused contact, not intent to cause harm. If Defendant meant to tap Plaintiff on the shoulder as a joke but Plaintiff fell and broke their hip, that's still battery—Defendant intended the contact.

Mistake #2: Forgetting All Four Negligence Elements

❌ Wrong approach: "Defendant was really careless and plaintiff got hurt, so that's negligence."

✅ Correct approach: Systematically analyze DICE:

• Duty: Did defendant owe plaintiff a duty of care?
• I (breach): Did defendant violate that duty?
• Causation: But-for cause AND proximate cause?
• E (damages): Actual harm suffered?

If any element is missing, there's no negligence claim—even if defendant was extremely careless.

Mistake #3: Applying Strict Liability Too Broadly

❌ Wrong thinking: "This is a really dangerous activity, so it must be strict liability."

✅ Correct thinking: Most activities—even dangerous ones—are governed by negligence, not strict liability. Strict liability applies only to:

1. Abnormally dangerous activities (not common and can't be made safe with care)
2. Dangerous animals (wild animals or domestic with known dangerous propensities)
3. Defective products

Driving a car is dangerous but common, so it's negligence. Transporting nitroglycerin is both dangerous and uncommon, so it's strict liability.

Mistake #4: Misunderstanding Proximate Cause

❌ Wrong thinking: "Defendant's negligence caused this result in the 'but for' sense, so proximate cause is satisfied."

✅ Correct thinking: Proximate cause is a separate requirement that asks whether the harm was a foreseeable consequence. Even if actual causation exists, highly unusual or unforeseeable chains of events may break proximate causation.

The Eggshell Plaintiff Exception: You take your victim as you find them. If Plaintiff has a rare condition that makes injuries worse, Defendant is liable for all damages—even the unforeseeable extent of harm. But this applies only to the extent of harm, not to completely unforeseeable types of harm.

Mistake #5: Confusing Assumption of Risk with Contributory Negligence

❌ Wrong thinking: These are the same defense.

✅ Correct thinking:

• Assumption of risk: Plaintiff voluntarily encountered a known risk (requires awareness of specific danger)
• Contributory/Comparative negligence: Plaintiff failed to exercise reasonable care (doesn't require awareness)

Example: Plaintiff drives without seatbelt and is injured in crash caused by Defendant:

• Contributory negligence: Yes (Plaintiff was careless)
• Assumption of risk: No (Plaintiff didn't voluntarily encounter the risk of Defendant's negligent driving)

Mistake #6: Forgetting About Vicarious Liability

❌ Wrong approach: "The employee committed the tort, so only the employee is liable."

✅ Correct approach: Under respondeat superior, employers are vicariously liable for torts committed by employees within the scope of employment. This means:

• Plaintiff can sue the employee, the employer, or both
• Employer is liable even if they did nothing wrong
• Scope of employment = acts of the kind the employee is hired to perform, occurring substantially within authorized time and space limits

🔧 Bar exam tip: Watch for fact patterns involving employee torts. Always consider whether the employer might be vicariously liable, even if the question focuses on the employee's conduct.

Key Takeaways 🎯

🧠 Master Mnemonics

Intentional Torts - "BAFTT"

• Battery
• Assault
• False imprisonment
• Trespass to land
• Trespass to chattels

Negligence Elements - "DICE"

• Duty
• brIeach
• Causation
• damagEs

Products Liability Defects - "MDW"

• Manufacturing
• Design
• Warning

Intentional Tort Defenses - "CCSD-PN"

• Consent
• Comparative negligence (for some torts)
• Self-defense
• Defense of others
• Property defense
• Necessity

📚 Further Study

For deeper exploration of tort law concepts:

1. American Bar Association Tort Trial & Insurance Practice Section - https://www.americanbar.org/groups/tort_trial_insurance_practice/ - Provides current developments in tort law, practice guides, and case summaries

2. Restatement (Third) of Torts (American Law Institute) - https://www.ali.org/publications/show/torts/ - Authoritative synthesis of common law tort principles used by courts nationwide

3. Legal Information Institute (Cornell Law School) - Tort Law Overview - https://www.law.cornell.edu/wex/tort - Free, comprehensive overview of tort law concepts with links to cases and statutes

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Final Exam Strategy Tip 💼: On the bar exam, tort questions often combine multiple issues. Start by identifying what kind of tort you're dealing with (intentional, negligence, or strict liability), then methodically work through the elements. Don't jump to defenses until you've established a prima facie case. And remember: when in doubt, discuss multiple theories—you get credit for spotting all potential claims, even if they're in the alternative!