TORTS_FINAL PREP

HOW TO THINK ON A TORTS EXAM

  • Every tort question is fundamentally probing the same concept:

    • Can the plaintiff establish every required element, and is there a defense that defeats it?

  • Your examination strategy should not be artistic; focus on:

    • Spotting every possible claim.

    • Applying only the relevant rule.

    • Reaching a clear conclusion, even if it is debatable.

INITIAL STRATEGY

  • Always begin by:

    1. Reading the call of the question first.

    2. Listing each lawsuit you must analyze.

    3. Writing IRAC (Issue, Rule, Application, Conclusion) blocks issue by issue, rather than story by story.

PART I: INTENTIONAL TORTS

Battery

  • Rule:

    • Intentional act.

    • Causes harmful or offensive contact.

    • With the person of another.

Key Points

  • Contact does NOT have to cause injury; offensive touching suffices.

  • Intent is defined as either:

    • Purpose, or

    • Substantial certainty regarding the contact.

Defenses

  • Consent: Valid unless exceeded or revoked.

  • Self-defense: Must be reasonable and proportional to the threat faced.

Exam Traps

  • Mistake is NOT recognized as a defense.

  • Contact through objects (e.g., throwing an object) counts as battery.

Assault

  • Rule:

    • Intentional act.

    • Causes reasonable apprehension.

    • Of imminent harmful or offensive contact.

Key Points

  • No physical contact is required for assault to be established.

  • Conditional threats usually do not succeed unless they imply imminence.

  • Intent can be transferred from battery to assault.

False Imprisonment

  • Rule:

    • Intentional confinement.

    • Within fixed boundaries.

    • Plaintiff must be aware of confinement or must be harmed by it.

Key Points

  • Plaintiff must have no reasonable means of escape from the confinement.

  • Confinement can last for a short duration and still be actionable.

Intentional Infliction of Emotional Distress (IIED)

  • Rule:

    • Conduct must be extreme and outrageous.

    • Conduct must be intentional or reckless.

    • Plaintiff suffers severe emotional distress.

Key Points

  • There is a high bar for IIED claims; mere insults or non-extreme behavior are insufficient.

Transferred Intent

  • Applies among the following torts:

    • Battery

    • Assault

    • False imprisonment

    • Trespass to land

    • Trespass to chattels

PART II: NEGLIGENCE (THE CORE OF THE FINAL)

  • Analyze negligence in the following order:

    1. Duty Rule:

    • Defendant owes a duty to act as a reasonable person under the circumstances.

    • Key Cases:

      • Palsgraf (determining foreseeable plaintiff / zone of danger).

    • Exam Traps:

      • Duty issues are typically straightforward.

      • Deeper analysis is required only when duty is contested.

    1. Breach Rule:

    • Failure to act in accordance with the standards of a reasonable person.

Tools for Breach Analysis

  • Risk-utility balancing.

  • Learned Hand Formula: B < PL, where:

    • B = Burden of taking precautions.

    • P = Probability of harm.

    • L = Severity of harm.

  • Custom can be a relevant but not conclusive factor.

Key Case for Breach

  • Carroll Towing.

    1. Actual Cause (Cause in Fact):

    • Determination methods include:

      • But-for test (default test): Would the harm have occurred but for the defendant’s actions?

      • Substantial factor test (for redundant causes).

      • Alternative liability (case: Summers v. Tice).

      • Market share liability (case: Sindell).

Exam Traps

  • The but-for test collapses when there are two sufficient causes.

  • The burden of proof can shift to the defendants.

    1. Proximate Cause:

    • Harm must be a foreseeable result of the defendant’s conduct.

Key Cases

  • Palsgraf

  • Osborne

  • Adams v. City of Chicago

Key Points on Proximate Cause

  • Foreseeability is an objective measure.

  • The type of harm must be foreseeable.

  • The extent of harm does NOT need to be foreseeable (referencing the eggshell skull rule).

    1. Intervening & Superseding Causes:

    • An intervening force can break causation only if it is extraordinary and unforeseeable.

Key Cases

  • Derdiarian (jury question).

  • Ventricelli (court determines).

  • Medcalf (criminal act deemed not foreseeable).

  • Delaney (jury decides on foreseeability).

    1. Damages:

    • Negligence requires the plaintiff to have suffered actual damages.

    • Types of damages include:

      • Economic damages.

      • Non-economic damages.

      • Punitive damages (rare in negligence claims).

Key Rules for Damages

  • Eggshell skull rule: Defendants are liable for the full extent of the harm, even if the severity was unforeseeable.

  • The plaintiff must be aware of injuries to claim damages for pain and suffering.

  • The collateral source rule: A plaintiff may not have damages reduced by compensation from other sources.

  • Mitigation of damages is required from the plaintiff.

PART III: STRICT LIABILITY

Abnormally Dangerous Activities

  • Rule:

    • Activities that create a high risk of harm.

    • Activities that cannot be made safe.

    • Activities not considered common usage.

Liability

  • There is no need to prove negligence in strict liability cases.

  • Proximate cause is still a necessary component.

PART IV: PRODUCTS LIABILITY

Theories of Liability

  • Negligence - Failing to exercise proper care.

  • Strict liability - Liability for damages without proof of negligence.

  • Warranty - Breach of warranties guaranteeing the product's safety/performance.

Types of Defects

  • Manufacturing Defect: A product deviates from its intended design.

  • Design Defect: When the risks outweigh the utility of the product or there exists a reasonable alternative design.

PART V: PROPERTY TORTS

Trespass to Land

  • Rule:

    • Intentional entry onto land of another.

Key Points

  • A mistake regarding the property does not serve as a defense.

  • Nominal damages are available for trespass.

Nuisance

Private Nuisance

  • Definition:

    • Involves substantial and unreasonable interference with the use and enjoyment of land.

Key Points

  • The defense of “coming to the nuisance” does not absolve liability.

  • The reasonableness balancing test is applied to assess claims of nuisance.

PART VI: DEFENSES

Consent

  • Can be expressed or implied.

  • Consent is limited to the scope of the consent that was provided.

Self-Defense

  • Requires a reasonable belief that force is necessary.

  • Force used must be proportional to the threat.

Necessity

  • Divided into public necessity and private necessity.

PART VII: MULTIPLE DEFENDANTS

Joint Tortfeasors

  • Parties acting together.

  • Independent acts causing indivisible harm.

Vicarious Liability

  • Legal responsibility assigned to one party for the actions of another.

Joint & Several Liability

  • The plaintiff may recover the full amount from one defendant, regardless of their individual share of the responsibility.

Contribution vs. Indemnity

  • Contribution: Shared fault among defendants.

  • Indemnity: Full financial shift of responsibility to the primary wrongdoer.

EXAM ATTACK TEMPLATE (MEMORIZE THIS)

For each claim, follow this structured approach:

  1. Issue: Identify the main issue.

  2. Rule: State the applicable rule clearly.

  3. Apply facts: Analyze how the facts relate to the issue and rule.

  4. Conclusion: Reach a conclusion. Be concise when obvious, but provide deeper analysis when there is contention.

FINAL MENTAL CHECKLIST BEFORE YOU SUBMIT

  • Did I identify every possible claim?

  • Did I separate actual vs. proximate cause clearly?

  • Did I address any potential defenses?

  • Did I reach a clear and supported conclusion?