Torts Hornbook Series
Written By The Law School of America / LexScript AI
Welcome to Torts Unleashed: Mastering the Multistate Bar Exam – your essential guide to conquering one of the most challenging yet foundational subjects on the Multistate Bar Examination (MBE). The vast landscape of Torts, with its intricate web of duties, breaches, causation, and damages, can often feel overwhelming. This hornbook is meticulously crafted to demystify these complexities, transforming daunting legal principles into clear, digestible, and exam-ready knowledge.
We understand the pressure you face. The MBE demands not just memorization, but a profound understanding of how tort principles apply in diverse factual scenarios. Our mission with Torts Unleashed is to bridge the gap between academic theory and practical exam application. We provide a focused, strategic approach, equipping you with the analytical tools necessary to identify issues, apply rules, and select the correct answer with confidence under timed conditions. Whether you're encountering Torts for the first time or seeking a comprehensive review, this book is your trusted companion on the path to MBE success.
The subject of Torts frequently accounts for a significant portion of MBE questions, making a solid grasp of its doctrines absolutely critical for passing the bar exam. Many students find Torts particularly challenging due to its breadth and the nuances inherent in applying common law principles to hypothetical situations. Our aim in writing Torts Unleashed is to provide an accessible yet rigorous treatment of all MBE-tested torts topics, presented in a manner optimized for retention and application.
This book is structured to guide you systematically through the entire Torts curriculum relevant to the MBE. We prioritize clarity, conciseness, and an unwavering focus on the issues and distinctions most commonly tested on the exam. Each chapter is designed to build upon previous concepts, fostering a deep and integrated understanding rather than mere surface-level recall. We delve into the 'why' behind the rules, offering insights that will empower you to analyze complex fact patterns with precision.
The chapters are organized as follows:
Chapter 1: Foundations of Tort Law & Intentional Torts to Persons – Lays the groundwork by defining tort law and exploring key intentional torts such as Battery, Assault, False Imprisonment, and Intentional Infliction of Emotional Distress.
Chapter 2: Dignitary Torts: Defamation and Invasion of Privacy – Covers the critical areas of protecting reputation and personal privacy, including the intricacies of libel, slander, and the various branches of invasion of privacy.
Chapter 3: Intentional Torts to Property and Related Defenses – Examines torts that interfere with property rights, such as Trespass to Land, Trespass to Chattels, and Conversion, along with common defenses applicable to intentional torts.
Chapter 4: Negligence: Duty and Breach of Standard Care – Begins the extensive coverage of negligence, focusing on the essential elements of duty of care (including premises liability and professional standards) and the determination of breach.
Chapter 5: Negligence: Causation, Damages, and Special Doctrines – Continues the exploration of negligence, addressing factual and proximate causation, the types of damages recoverable, and specialized negligence doctrines like Res Ipsa Loquitur and Negligent Infliction of Emotional Distress.
Chapter 6: Strict Liability and Products Liability – Explores torts where liability can be imposed without fault, particularly focusing on abnormally dangerous activities and the comprehensive framework of products liability.
Chapter 7: Affirmative Defenses, Immunities, and Other Liabilities – Concludes with a review of crucial affirmative defenses (e.g., comparative and contributory negligence, assumption of risk), various immunities, vicarious liability, and joint and several liability.
We believe that with dedication and the focused approach provided in Torts Unleashed, you will not only master the nuances of tort law but also develop the confidence to excel on the MBE. Your success is our ultimate goal.
Torts Unleashed is designed as an active learning tool, not just a passive textbook. To maximize its effectiveness for your Multistate Bar Examination preparation, we recommend the following approach:
Read Actively: Do not simply skim the material. Engage with the text, highlighting key terms, rules, and exceptions. Pay close attention to the examples and hypothetical scenarios provided, as they often mirror the structure of MBE questions.
Outline and Synthesize: After reading each chapter, create your own concise outline or flowchart. This process of synthesizing information in your own words is crucial for solidifying understanding and recall under exam conditions.
Integrate with Practice Questions: This hornbook provides the foundational knowledge. To truly "unleash" your potential, you must integrate your reading with extensive practice questions. After studying a topic, immediately apply that knowledge by tackling relevant MBE practice questions. Analyze not only why the correct answer is right, but also why the incorrect answers are wrong.
Focus on Rule Statements and Elements: The MBE frequently tests your ability to identify the correct rule statement and its elements. Pay special attention to these throughout the book. Mnemonics and concise rule summaries will be invaluable for quick recall.
Review Frequently Tested Topics: While all chapters are important, some areas (e.g., Negligence, Products Liability, Defamation) are historically more heavily tested. As you progress, identify these high-frequency topics and allocate additional review time to them.
Understand the "Why": The MBE is not just about memorization; it's about application. Strive to understand the underlying policy reasons and logical flow of each legal doctrine. This deeper understanding will enable you to navigate trickier questions and novel fact patterns.
By treating Torts Unleashed as a dynamic component of your study strategy, you will build a robust understanding of Torts that translates directly into higher scores on the Multistate Bar Exam. Good luck!
Chapter 1: Foundations of Tort Law & Intentional Torts to Persons
Chapter 2: Dignitary Torts: Defamation and Invasion of Privacy
Chapter 3: Intentional Torts to Property and Related Defenses
Chapter 4: Negligence: Duty and Breach of Standard Care
Chapter 5: Negligence: Causation, Damages, and Special Doctrines
Chapter 6: Strict Liability and Products Liability
Chapter 7: Affirmative Defenses, Immunities, and Other Liabilities
"This chapter establishes the conceptual framework of tort law, distinguishing civil wrongs from criminal offenses and contract disputes while delineating the objectives of compensation, deterrence, and corrective justice. It provides a rigorous analysis of the element of intent, including the "substantial certainty" test and transferred intent, and examines the *prima facie* cases for intentional torts against the person: battery, assault, false imprisonment, and intentional infliction of emotional distress. Finally, it outlines key affirmative defenses, specifically focusing on the nuances of consent and self-defense."
The law of torts constitutes the body of legal principles governing civil liability for non-contractual wrongs. Unlike criminal law, which seeks to punish offenses against the state, or contract law, which enforces voluntary agreements, tort law imposes duties on individuals to act in a manner that does not injure others. This chapter establishes the conceptual framework for these duties and examines the most fundamental category of civil wrongs: intentional torts against the person. We begin by defining the requisite mental state—intent—before analyzing the specific causes of action: battery, assault, false imprisonment, and intentional infliction of emotional distress.
A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy, typically in the form of monetary damages. The primary objectives of the tort system are threefold: compensation for the injured party, deterrence of future misconduct, and the administration of corrective justice. While modern tort law is dominated by the concept of negligence, the historical and conceptual starting point remains the intentional tort. Liability for intentional conduct is generally more expansive than for negligent conduct, reflecting the moral culpability associated with purposeful harm.
In the context of intentional torts, "intent" is a term of art. It does not necessarily require a hostile motive or a desire to do harm. Rather, intent is established if the defendant either (1) acts with the specific purpose of producing the consequence, or (2) acts knowing that the consequence is substantially certain to result.
Case Illustration: Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955)
Facts: The defendant, a five-year-old boy, pulled a lawn chair out from under the plaintiff as she began to sit down. The plaintiff fell and sustained injuries. The trial court initially found no intent to harm.
Holding: The Supreme Court of Washington remanded the case for clarification, establishing that intent exists if the defendant knew with substantial certainty that the plaintiff would attempt to sit where the chair had been. A malicious desire to injure is not required; knowledge of the inevitable physical result suffices.
This "substantial certainty" test distinguishes intentional torts from negligence (mere risk creation) and recklessness (conscious disregard of a high risk). Furthermore, under the doctrine of Transferred Intent, liability attaches even if the defendant misses their intended target and strikes another, or intends one tort (e.g., assault) but commits another (e.g., battery). The intent follows the bullet, so to speak, ensuring that the wrongdoer bears the cost of their unlawful conduct.
Battery is the intentional infliction of a harmful or offensive bodily contact upon another. It protects the individual's interest in physical integrity and personal dignity.
Intent: The actor must intend to cause a harmful or offensive contact, or intend to cause an imminent apprehension of such contact (assault).
Contact: There must be actual physical contact with the plaintiff's person.
Harmful or Offensive: The contact must cause physical injury or offend a reasonable sense of personal dignity.
It is critical to note that the plaintiff need not be conscious of the contact at the time it occurs for a battery to exist (e.g., a surgeon performing an unauthorized procedure on an anesthetized patient). Furthermore, the "person" of the plaintiff includes objects intimately associated with their body, such as a cane, a plate held in hand, or clothing.
Case Illustration: Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967)
Facts: A hotel employee snatched a plate from the hands of the plaintiff, a NASA mathematician, while shouting a racial slur. The employee did not touch the plaintiff's body.
Holding: The court held that the intentional snatching of an object from one's hand constitutes a battery. The essence of the tort is the offense to dignity, not merely physical trauma. The plate was considered an extension of the plaintiff's person.
Not all unconsented contacts are batteries. As noted by Justice Holmes, we live in a "crowded world." Consequently, the law presumes consent to the ordinary contacts of daily life, such as a tap on the shoulder to ask for directions or jostling in a crowded subway. Liability only attaches when the contact exceeds these customary social norms.
Assault is an intentional act that creates a reasonable apprehension of an imminent harmful or offensive contact. While battery protects physical integrity, assault protects the mental peace of mind—the right to be free from the fear of unwanted touching.
Intent: To cause harmful or offensive contact or the apprehension thereof.
Apprehension: The plaintiff must be aware of the threat.
Imminence: The threatened contact must be immediate; future threats do not constitute assault.
Apprehension vs. Fear: Legal apprehension is not synonymous with fear. A professional boxer may not be afraid of a scrawny assailant raising a fist, but if the boxer anticipates the blow, apprehension exists. Conversely, if the plaintiff is unaware of the danger (e.g., threatened from behind), there is no assault.
Generally, words alone are insufficient to constitute an assault. There must be an overt act or gesture. However, words can negate the intent of a gesture. In the classic case of Tuberville v. Savage (1669), a man placed his hand on his sword but stated, "If it were not assize-time, I would not take such language from you." The court held there was no assault because the words indicated that no attack would occur.
False imprisonment protects an individual's interest in freedom of movement. It arises when a defendant intentionally confines a plaintiff within boundaries fixed by the defendant.
Intent: To confine the other or a third person within boundaries fixed by the actor.
Confinement: The act directly or indirectly results in such confinement.
Consciousness or Harm: The plaintiff is conscious of the confinement or is harmed by it.
Confinement may be achieved through physical barriers, physical force, threats of force, or the assertion of legal authority (false arrest). However, moral pressure or economic coercion is generally insufficient. Furthermore, the confinement must be total; if there is a reasonable and safe means of escape known to the plaintiff, there is no false imprisonment.
Case Illustration: Whittaker v. Sandford, 85 A. 399 (Me. 1912)
Facts: The plaintiff was a member of a religious sect led by the defendant. While she was on the defendant's yacht, he refused to provide her with a rowboat to go ashore, effectively trapping her on the vessel surrounded by water.
Holding: The court found this constituted false imprisonment. The ocean acted as a physical barrier, and the defendant had a duty to provide the means of egress he had previously controlled.
A critical exception to false imprisonment is the Shopkeeper's Privilege. This doctrine allows a merchant to detain a suspected shoplifter for a reasonable time and in a reasonable manner for the purpose of investigation, provided there are reasonable grounds for suspicion. This balances the merchant's property rights against the customer's liberty.
Unlike the ancient trespassory torts of battery and assault, Intentional Infliction of Emotional Distress (IIED) is a modern development. It addresses severe emotional trauma caused by extreme misconduct, even in the absence of physical injury.
Extreme and Outrageous Conduct: The conduct must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.
Intent or Recklessness: The defendant intended to cause severe distress or acted with reckless disregard of the high probability that it would occur.
Causation: The conduct was the actual cause of the distress.
Severe Emotional Distress: The distress must be so severe that no reasonable person could be expected to endure it.
Mere insults, indignities, threats, annoyances, or petty oppressions do not amount to IIED. The law expects individuals to possess a certain level of emotional toughness. However, the "outrageousness" threshold may be lowered if the defendant knows of the plaintiff's peculiar susceptibility or occupies a position of authority over the plaintiff (e.g., police officers, school officials, or common carriers).
Case Illustration: State Rubbish Collectors Ass'n v. Siliznoff, 240 P.2d 282 (Cal. 1952)
Facts: An association of rubbish collectors threatened to beat the plaintiff and destroy his truck and business if he did not pay over proceeds from a specific route.
Holding: The court recognized the independent tort of IIED. Previously, emotional distress was only recoverable as "parasitic" damages attached to another tort (like assault). This case established that one can recover for emotional distress alone if the conduct is sufficiently extreme and the distress severe.
Even where a prima facie case is established, the defendant may avoid liability by proving an affirmative defense. The most relevant defenses to person-based torts are Consent, Self-Defense, and Defense of Others.
Volenti non fit injuria—to one who is willing, no wrong is done. Consent may be express (verbal or written) or implied by conduct or custom. However, consent is invalid if obtained through fraud, duress, or if the plaintiff lacks the capacity to consent (due to age, intoxication, or mental incompetence).
Case Illustration: O'Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891)
Facts: A ship passenger held out her arm to a surgeon for a smallpox vaccination. She later sued for battery, claiming she did not want the shot.
Holding: The court found implied consent. The plaintiff's overt act (holding out her arm) and failure to object justified the doctor's assumption that she consented, regardless of her unexpressed internal feelings.
An individual is privileged to use reasonable force to defend against an immediate threat of battery or confinement. The force used must be proportional to the threat. Deadly force is only privileged if the defendant reasonably believes they face a threat of death or serious bodily harm.
The Duty to Retreat: The majority rule allows a person to stand their ground and use non-deadly force. Regarding deadly force, jurisdictions are split; some require retreat if it can be done safely (except in one's home, known as the "Castle Doctrine"), while others allow the defendant to stand their ground.
In conclusion, the intentional torts to persons form the bedrock of civil liability. They enforce the social contract by penalizing non-consensual invasions of bodily integrity and mental peace. Mastery of these concepts—specifically the nuances of intent and the scope of protected interests—is essential before advancing to the more complex balancing tests found in negligence and strict liability.
"Chapter 2 explores the legal protections for individual dignity, focusing on the twin pillars of Defamation and Invasion of Privacy. It details the common law elements of libel and slander, the critical constitutional modifications requiring 'actual malice' for public figures, and the four distinct privacy torts: Intrusion, Public Disclosure, False Light, and Appropriation. The chapter emphasizes the tension between these causes of action and First Amendment privileges."
The protection of human dignity, specifically regarding reputation and privacy, constitutes a distinct and evolving branch of tort law. Unlike the physical harms addressed in battery or negligence, dignitary torts remedy injuries to an individual's standing in the community and their right to be let alone. This chapter examines the two primary pillars of this field: Defamation, which addresses the publication of false statements harming reputation, and Invasion of Privacy, a cluster of four distinct torts protecting personal autonomy. A critical theme throughout this analysis is the tension between these protections and the First Amendment freedom of speech and press.
Defamation is the invasion of the interest in reputation and good name. At common law, it was a strict liability offense. However, modern jurisprudence has superimposed complex constitutional requirements upon the common law elements, particularly when the plaintiff is a public figure or the speech involves a matter of public concern.
To establish a prima facie case for defamation, the plaintiff must prove the following elements:
Defamatory Language: Language tending to adversely affect one's reputation.
Of or Concerning the Plaintiff: A reasonable reader or listener would understand that the defamatory statement referred to the plaintiff.
Publication: Communication of the defamation to a third person.
Damages: Harm to the reputation (requirements vary by type of defamation).
A statement is defamatory if it tends to lower the plaintiff in the estimation of the community or deters third persons from associating with them. Mere name-calling or hyperbole is generally not actionable. The court determines whether a statement is capable of a defamatory meaning; the jury determines if it was actually understood as such.
When the defamatory meaning is not apparent on the face of the statement, the plaintiff must plead:
Inducement: Extrinsic facts necessary to understand the defamation.
Innuendo: The defamatory meaning derived from the combination of the statement and the extrinsic facts.
The classification of the statement determines the requirement for proving damages.
1. Libel: Generally, the written or printed publication of defamatory matter. Because of the permanence of writing, damages are typically presumed; the plaintiff need not prove specific economic loss (special damages) to recover general damages for injury to reputation.
2. Slander: Spoken defamation. To recover for slander, the plaintiff must prove special damages (pecuniary loss) unless the statement falls into the category of slander per se.
Slander Per Se: Under the common law, four types of utterances are considered so inherently damaging that damages are presumed:
Allegations of a serious crime (involving moral turpitude).
Allegations of a loathsome disease (historically leprosy or venereal disease).
Imputations affecting the plaintiff in their business, trade, profession, or office.
Imputations of serious sexual misconduct (historically unchastity in a woman).
The most significant development in modern tort law is the constitutionalization of defamation. The Supreme Court has held that the First Amendment restricts the ability of states to impose liability for defamation, particularly regarding public officials and public figures.
Under the common law, a defendant could be liable even if they honestly and reasonably believed their statement was true. This changed with the landmark decision in New York Times Co. v. Sullivan.
Case Illustration: New York Times Co. v. Sullivan (1964)
Facts: The New York Times published an advertisement by a civil rights group that contained factual inaccuracies regarding the police response to protests in Montgomery, Alabama. L.B. Sullivan, the Public Safety Commissioner, sued for libel, though he was not named explicitly.
Holding: The Supreme Court held that the First Amendment prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice."
Defining Actual Malice: In this context, "malice" is a term of art. It does not mean ill will or spite. It means knowledge that the statement was false or reckless disregard of whether it was false or not. Reckless disregard requires that the defendant entertained serious doubts as to the truth of the publication.
This standard was subsequently extended to "public figures" (e.g., celebrities or those who thrust themselves into public controversies) in Curtis Publishing Co. v. Butts.
When the plaintiff is a private individual, the First Amendment interest is less dominant, but still present if the speech involves a matter of public concern. In Gertz v. Robert Welch, Inc., the Court established a two-tiered approach:
Liability Standard: States may define the standard of liability for private figure plaintiffs, provided they do not impose liability without fault. Thus, strict liability is unconstitutional. Negligence is the minimum standard.
Damages: If the plaintiff proves only negligence, they may recover only "actual injury" (impairment of reputation, humiliation). Presumed or punitive damages are recoverable only upon a showing of actual malice.
There is no wholesale constitutional privilege for "opinion." However, a statement of opinion that does not imply a false assertion of fact is not actionable. If a statement cannot reasonably be interpreted as stating actual facts about an individual, it is protected (Milkovich v. Lorain Journal Co.).
Truth is an absolute defense to defamation. Under the common law, the burden was on the defendant to prove truth. However, in cases involving public interest or public figures, the burden shifts to the plaintiff to prove falsity as an element of the claim.
Certain situations require total immunity from liability to encourage open communication, regardless of the defendant's motive or the falsity of the statement:
Judicial Proceedings: Statements made by judges, jurors, counsel, parties, or witnesses in the course of judicial proceedings.
Legislative Proceedings: Statements made by legislators during debate.
Executive Proceedings: Statements by senior government officials in the discharge of their duties.
Spousal Communications: Communications between husband and wife.
A qualified privilege exists when the defendant acts to protect their own interest, the interest of a third person, or a common interest (e.g., an employer providing a reference). This privilege is lost if the defendant acts with common law malice (spite) or exceeds the scope of the privilege.
While defamation protects reputation (what others think of you), privacy torts protect peace of mind and the right to be left alone. Dean Prosser categorized these into four distinct torts.
This tort imposes liability for intentionally intruding, physically or otherwise, upon the solitude or seclusion of another or their private affairs or concerns.
Elements:
An unauthorized intrusion or prying into the plaintiff's seclusion.
The intrusion must be highly offensive to a reasonable person.
The matter intruded upon must be private.
Analysis: No publication is required. The tort is complete upon the intrusion itself (e.g., wiretapping, peeping, unauthorized entry). However, there is no liability for observing what is in public view. A plaintiff has no reasonable expectation of privacy on a public street.
This tort involves the publication of private information that is not of legitimate public concern.
Elements:
Publicity given to private life.
The matter publicized would be highly offensive to a reasonable person.
The matter is not of legitimate public concern (not newsworthy).
Distinction from Defamation: Truth is not a defense; in fact, the tort assumes the statement is true. The injury is the exposure of private life (e.g., medical history, sexual orientation) to the public.
Case Illustration: Sidis v. F-R Publishing Corp. (1940)
Facts: A magazine published a "Where Are They Now?" article about a former child prodigy who had become a recluse. The article detailed his mundane, quirky private life.
Holding: The court found no liability. The plaintiff was a public figure (albeit unwillingly), and his life remained a matter of legitimate public interest. The facts disclosed were not so intimate as to outrage the community's notions of decency.
False light exists where the defendant attributes to the plaintiff views they do not hold or actions they did not take. It overlaps significantly with defamation but protects emotional integrity rather than reputation.
Elements:
Publication placing the plaintiff in a false light before the public.
The false light would be highly offensive to a reasonable person.
Constitutional Requirement: If the matter is of public interest, the plaintiff must prove actual malice (knowledge of falsity or reckless disregard), per Time, Inc. v. Hill.
Appropriation is the unauthorized use of the plaintiff's name or likeness for the defendant's commercial advantage.
Elements:
Use of the plaintiff's identity.
Appropriation for the defendant's benefit (usually commercial advertising).
Lack of consent.
Policy: This is the only privacy tort that protects a proprietary interest (the economic value of one's image) rather than a mental interest. The "newsworthiness" exception applies here as well; a newspaper can use a celebrity's photo in a news story without paying, but cannot use it to endorse a product.
Case Illustration: Zacchini v. Scripps-Howard Broadcasting Co. (1977)
Facts: A television station filmed and broadcast a "human cannonball's" entire act against his will on the news.
Holding: The First Amendment did not immunize the media from liability for appropriation where they broadcast the plaintiff's entire act, thereby destroying its economic value.
Dignitary torts represent a delicate balance between the individual's right to personality protection and society's interest in free expression. The evolution of these torts, particularly the heavy overlay of constitutional law, demonstrates the judiciary's commitment to ensuring that liability for speech is carefully circumscribed to prevent the chilling of public discourse, while still offering recourse for egregious violations of reputation and privacy.
"Chapter 3 examines the intentional torts protecting real and personal property, specifically Trespass to Land, Trespass to Chattels, and Conversion, distinguishing them based on the nature of the intrusion and the severity of interference with possession. It explores the requisite intent, the distinction between intermeddling and dominion, and the calculation of damages, including the forced sale remedy in conversion. Finally, the chapter analyzes affirmative defenses, highlighting the economic and legal distinctions between the absolute privilege of Public Necessity and the qualified privilege of Private Necessity."
The common law has long held the protection of property rights as a cornerstone of civil order. While the previous chapters addressed the sanctity of the person and reputation, this chapter turns to the legal protections afforded to real and personal property. We examine three primary intentional torts: Trespass to Land, Trespass to Chattels, and Conversion. Furthermore, we analyze the specific affirmative defenses relevant to property, with particular emphasis on the doctrine of Necessity, which illustrates the law’s attempt to balance private property rights against urgent human needs.
Trespass to land (*trespass quare clausum fregit*) protects a possessor’s interest in the exclusive possession of real property. Unlike negligence, which requires proof of damages, trespass to land is an intentional tort that is actionable *per se*. The mere violation of the boundary constitutes the injury, regardless of whether physical harm is done to the land.
Act of Physical Invasion: The defendant must physically enter the plaintiff’s land or cause a tangible object or third person to do so.
Intent: The defendant must have the intent to enter that specific piece of land.
Causation: The invasion must be legally caused by the defendant’s act.
The intent requirement in trespass to land is frequently misunderstood. The plaintiff need not prove that the defendant intended to trespass or intended to do harm. Rather, the plaintiff must only prove that the defendant intended to enter the land in question. A mistake of fact regarding ownership is generally not a defense. If A walks onto B’s land, believing in good faith that it is A’s own land, A is liable for trespass. The intent to put one’s foot on that specific patch of earth suffices.
Case Illustration: Dougherty v. Stepp (1835)
Facts: The defendant entered the plaintiff’s unenclosed land with a surveyor and chain carriers to survey a boundary line, claiming the land as his own. No trees were cut, and the grass was merely trodden down.
Holding: The court held that every unauthorized entry onto the land of another is a trespass, regardless of the amount of damage. The law infers some damage from every direct entry; if no actual damage is proven, the plaintiff is entitled to nominal damages to vindicate their legal title.
At common law, the maxim *cuius est solum, eius est usque ad coelum et ad inferos* (whoever owns the soil, it is theirs up to heaven and down to hell) governed. Modern aviation and subsurface utilization have curtailed this absolute rule.
Airspace: A trespass occurs in the airspace above the land only if the object enters into the "immediate reaches" of the airspace and interferes substantially with the owner’s use and enjoyment of the land. High-altitude flight is generally immune, whereas a drone hovering at window level may constitute trespass.
Subsurface: Mining or drilling under another’s land generally remains a trespass. However, complex issues arise regarding fracking and injection wells, where the physical invasion is microscopic or fluid.
Traditionally, trespass required a tangible invasion. Smoke, noise, or light were treated under the tort of Nuisance (interference with use and enjoyment) rather than Trespass (interference with possession). Modern courts, however, have begun to blur this line. In cases involving microscopic particles (e.g., arsenic dust from a smelter), some jurisdictions allow a trespass action if the plaintiff can prove the particles accumulated and caused actual physical damage.
The common law distinguishes between two degrees of interference with personal property (chattels): Trespass to Chattels and Conversion. The distinction lies primarily in the degree of the interference and the measure of damages.
Trespass to chattels involves a lesser interference with the plaintiff’s possession. It is the "little brother" of conversion.
Intent: Intent to perform the act that interferes with the chattel. Mistake of ownership is not a defense.
Interference: Dispossessing the other of the chattel OR intermeddling with the chattel in the possession of another.
Damages: Unlike trespass to land, trespass to chattels generally requires proof of actual damages.
Liability arises only if the interference results in dispossession for a substantial time, or if the condition, quality, or value of the chattel is impaired. Mere touching of a car, for instance, without scratching it or moving it, is generally not actionable.
Case Illustration: Intel Corp. v. Hamidi (2003)
Facts: A former employee sent thousands of emails criticizing Intel to current employees via the company’s internal email system. Intel sued for trespass to chattels.
Holding: The California Supreme Court held that electronic communication does not constitute trespass to chattels unless it causes actual injury to the chattel (the server hardware) or interferes with its functioning. Because the emails did not slow down or damage the system, there was no trespass. The court rejected the theory that the mere "inviolability" of the server was a protected interest absent physical disruption.
Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. It is essentially a forced judicial sale.
To distinguish conversion from trespass to chattels, courts look to the factors outlined in the Restatement (Second) of Torts § 222A:
The extent and duration of the actor’s dominion or control;
The actor’s intent to assert a right in fact inconsistent with the other’s right of control;
The actor’s good faith;
The extent and duration of the resulting interference with the other’s right of control;
The harm done to the chattel;
The inconvenience and expense caused to the other.
Remedy: The remedy for conversion is the fair market value of the chattel at the time and place of the conversion. The defendant keeps the chattel. In contrast, the remedy for trespass to chattels is usually the diminution in value or cost of repair.
Serial Conversion: A thief acquires no title to stolen goods (void title). Therefore, if a thief sells a stolen watch to a bona fide purchaser (BFP), the BFP is liable for conversion to the original owner upon refusal to return it. The BFP’s good faith is irrelevant to the tort liability, though it may allow them to seek indemnity from the thief.
While consent is a universal defense to intentional torts, property torts are uniquely subject to the privileges of Necessity and the Recovery of Property.
Necessity is a privilege that allows a defendant to interfere with the property rights of another to avoid a greater harm. It is divided into Public Necessity and Private Necessity.
Public necessity arises when the defendant acts to avert a public disaster. This privilege is absolute (complete). If the requirements are met, the defendant is not liable for the intentional tort and need not pay for the damage caused.
Case Illustration: Surocco v. Geary (1853)
Facts: The Mayor of San Francisco ordered the plaintiff’s house blown up to create a firebreak and stop a conflagration that threatened the city.
Holding: The court found the Mayor not liable. The rights of the individual must yield to the supreme necessity of the public safety. Under the common law, this is *damnum absque injuria* (damage without legal injury).
Private necessity arises when the defendant acts to protect their own interest (or the interest of a few) from a serious harm. Unlike public necessity, this privilege is qualified or incomplete. The defendant is privileged to enter the land or use the chattel (meaning they are not a trespasser and cannot be ejected), but they remain liable for any actual damage caused.
Case Illustration: Vincent v. Lake Erie Transportation Co. (1910)
Facts: The defendant tied its steamship to the plaintiff’s dock to unload cargo. A violent storm arose. Rather than casting off, which would have likely destroyed the ship ($$$), the defendant kept the lines tight, replacing them as they frayed. The ship was saved, but the heaving of the ship caused $500 in damage to the dock.
Holding: The court held the defendant liable for the damage to the dock. While the defendant was privileged to remain at the dock to save the ship (and the dock owner would have been liable for battery had he unmoored the ship), the privilege is conditional. The defendant preserved its valuable property at the expense of the plaintiff’s property and must compensate the plaintiff for the loss.
Economic Analysis: The rule in *Vincent* forces the party who is in the best position to make a cost-benefit analysis to internalize the costs of their decision. By requiring compensation, the law ensures that the defendant only destroys the dock if the ship is truly worth more than the dock.
A person wrongfully dispossessed of a chattel may use reasonable force to recover it, provided they act in "fresh pursuit."
Fresh Pursuit: The owner must act without unreasonable delay. If time has passed, the owner must resort to legal process (e.g., a writ of replevin) rather than self-help.
Reasonable Force: Deadly force is never privileged merely to protect property. Furthermore, if the owner is mistaken about the dispossession (e.g., the person did not actually steal the item), the privilege is usually lost, and the owner is liable for battery.
Shopkeeper’s Privilege: Many jurisdictions have modified the common law by statute or decision to allow merchants a limited privilege to detain suspected shoplifters for a reasonable time and in a reasonable manner for investigation, even if mistaken, provided there is probable cause.
The intentional torts to property—trespass to land, trespass to chattels, and conversion—establish a hierarchy of protection based on the nature of the property and the severity of the interference. While the law vigorously protects the exclusive possession of land through nominal damages, it requires actual harm or serious dominion for personal property liability. The defenses, particularly the incomplete privilege of private necessity, illustrate the law's pragmatic approach: permitting interference to save life or valuable property, while ensuring that the costs of such salvation are equitably distributed.
"Chapter 4 examines the first two elements of a negligence claim: the existence of a legal duty and the breach of the standard of care. It details the 'reasonable person' standard, explores the scope of duty regarding foreseeable plaintiffs and special relationships, and distinguishes the varying duties owed by landowners based on the status of the entrant. Additionally, the chapter analyzes the procedural mechanisms for proving breach, including the 'Hand Formula' for risk calculus and the doctrine of *res ipsa loquitur* for circumstantial evidence."
Negligence constitutes the backbone of modern tort law, representing a shift from the rigid writ systems of early common law to a flexible standard of liability based on fault. Unlike intentional torts, where liability flows from a specific intent to cause consequences, negligence imposes liability for the failure to exercise reasonable care, resulting in unintended harm. To establish a prima facie case for negligence, a plaintiff must prove four distinct elements by a preponderance of the evidence: (1) Duty, (2) Breach, (3) Causation (both factual and proximate), and (4) Damages. This chapter focuses exclusively on the first two elements: the existence of a legal duty and the breach of the standard of care required by that duty.
The inquiry into duty and breach is essentially an inquiry into the quality of the defendant's conduct. We must first determine whether the law obligated the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks (Duty). If such an obligation exists, we must then assess whether the defendant's conduct fell below that standard (Breach).
The concept of duty serves as a gatekeeper in tort litigation. It is a question of law to be determined by the judge, not the jury. Generally, the law imposes a duty on all individuals to exercise reasonable care when their affirmative conduct creates a foreseeable risk of physical harm to others. However, this duty is not infinite; it is circumscribed by considerations of policy, foreseeability, and the relationship between the parties.
The most contentious issue regarding duty arises when a defendant's negligent act causes harm to an unforeseen victim. The seminal debate on the scope of duty is found in the conflicting opinions of Chief Judge Cardozo and Judge Andrews in Palsgraf v. Long Island Railroad Co.
Case Illustration: Palsgraf v. Long Island Railroad Co. (N.Y. 1928)
Facts: Railroad guards attempted to help a passenger board a moving train. In the process, they dislodged a nondescript package held by the passenger. The package contained fireworks, which exploded upon falling. The shock of the explosion caused scales at the other end of the platform to fall, injuring Mrs. Palsgraf, who was standing far away from the initial event.
Holding (Cardozo, C.J.): The railroad owed no duty to Mrs. Palsgraf. Negligence is not actionable in the air; it is a relational concept. A defendant owes a duty of care only to those plaintiffs who are within the "zone of danger" created by the defendant's conduct. Because the harm to Mrs. Palsgraf was not foreseeable from the perspective of the guards handling the package, no duty was owed to her.
Dissent (Andrews, J.): Duty is owed to the world at large. If a defendant commits a negligent act (an act that unreasonably risks harm to anyone), they should be liable for all proximate consequences, regardless of whether the specific plaintiff was foreseeable.
Most jurisdictions adhere to the Cardozo view: a duty is owed only to foreseeable plaintiffs. However, the Andrews view influences the analysis of proximate cause in some jurisdictions, suggesting that once a duty is breached toward one person, the defendant may be liable for broader consequences.
A fundamental principle of Anglo-American tort law is the distinction between misfeasance (active misconduct) and nonfeasance (passive inaction). As a general rule, there is no duty to rescue a stranger in peril, even if the rescue could be accomplished with minimal risk to the rescuer. This rule reflects a judicial reluctance to force individuals to serve as their brother's keeper.
Exceptions to the "no duty to rescue" rule exist where:
Special Relationships: A duty arises in relationships of dependence, such as parent-child, common carrier-passenger, innkeeper-guest, or jailer-prisoner.
Creation of Peril: If the defendant's negligence (or even innocent conduct) placed the plaintiff in danger, the defendant owes a duty to assist.
Assumption of Duty: If a defendant voluntarily undertakes a rescue, they must exercise reasonable care and not leave the victim in a worse position.
Once a duty is established, the court must define the standard of care. The default standard is that of the Reasonable Person. This is an objective standard, measuring the defendant's conduct against what a hypothetical, reasonably prudent person would have done under similar circumstances.
The reasonable person is a legal fiction—an ideal of prudence. This standard is generally not adjusted for a defendant's individual shortcomings. A person with poor judgment, a bad temper, or clumsiness is held to the same standard as the community at large. This ensures that the public is protected from substandard conduct and simplifies the administration of justice.
However, the law acknowledges certain modifications to this objective standard:
Physical Disabilities: The standard is modified to that of a reasonable person with the same physical disability. For example, a blind person must act as a reasonably prudent blind person would in similar circumstances.
Mental Disabilities: Conversely, the law generally does not make allowances for mental illness or cognitive disabilities in adult defendants. An individual with a mental illness is held to the standard of a reasonable person without such illness. This policy aims to allocate losses to the person who caused them and to incentivize guardians to supervise those with dangerous tendencies.
Children: Children are held to a subjective standard: the care of a reasonable child of like age, intelligence, and experience. Exception: When a child engages in "adult activities" (e.g., operating a motor vehicle or boat), they are held to the adult objective standard.
Professionals—doctors, lawyers, accountants, engineers—are held to a higher standard. They must exercise the knowledge, skill, and care ordinarily possessed by members of their profession in good standing. Unlike the general reasonable person standard, which a jury can often understand without aid, the professional standard usually requires expert testimony to establish the specific duty and breach, unless the negligence is so obvious that it lies within the common knowledge of laypersons (e.g., leaving a sponge inside a patient).
In certain instances, a criminal or regulatory statute may supplant the common law reasonable person standard. This doctrine is known as negligence per se. If a defendant violates a safety statute, the court may adopt the statutory requirement as the standard of care.
To apply negligence per se, the plaintiff must prove:
Class of Person: The plaintiff belongs to the class of persons the statute was designed to protect.
Class of Risk: The harm suffered is the type of harm the statute was intended to prevent.
Case Illustration: Martin v. Herzog (N.Y. 1920)
Facts: The plaintiff's decedent was killed in a collision while driving a buggy without lights, in violation of a statute requiring lights for the safety of highway travelers.
Holding: The unexcused omission of the statutory signals is more than some evidence of negligence; it is negligence in itself. Jurors have no dispensing power to excuse the violation of a statutory duty intended to protect the public.
Procedural Effect: In most jurisdictions, an unexcused violation is conclusive evidence of duty and breach (negligence per se). In a minority of jurisdictions, it serves merely as evidence of negligence.
The duty a landowner owes to an entrant on their land traditionally depends on the entrant's legal status. This is a rigid trichotomy that has been abolished in some modern jurisdictions (notably California, following Rowland v. Christian) in favor of a general negligence standard, but it remains the majority rule.
A trespasser enters without permission. Generally, the landowner owes no duty to an undiscovered trespasser. However, once a trespasser is discovered (or frequently anticipated), the owner has a duty to warn of or make safe known, highly dangerous artificial conditions (man-made death traps).
A licensee enters with permission for their own purpose (e.g., a social guest). The landowner owes a duty to warn of known, latent (hidden) dangers. There is no duty to inspect the property to discover unknown dangers.
An invitee enters for a business purpose benefiting the owner (e.g., a store customer) or enters land held open to the public. The landowner owes the highest duty: to inspect the premises for dangers and to make them safe. The duty extends to reasonably discoverable conditions, not just known ones.
Breach occurs when the defendant's conduct falls below the applicable standard of care. This is a question of fact for the jury. The jury must weigh the utility of the defendant's conduct against the magnitude of the risk created.
Judge Learned Hand provided the classic algebraic formulation for determining breach in United States v. Carroll Towing Co. Liability depends upon whether the burden of taking precautions (B) is less than the probability of harm (P) multiplied by the gravity of the potential loss (L).
Liability exists if: B < P x L
If the cost of prevention (B) is lower than the expected accident cost (PL), the reasonable person would undertake the precaution. Failure to do so constitutes a breach. While juries are rarely instructed to perform math, this formula underpins the conceptual analysis of reasonableness.
Plaintiffs usually prove breach through direct evidence (e.g., eyewitness testimony) or circumstantial evidence. However, in some cases, the plaintiff cannot identify the precise negligent act. The doctrine of res ipsa loquitur ("the thing speaks for itself") allows the jury to infer negligence from the mere fact that the accident occurred.
To invoke res ipsa loquitur, the plaintiff must show:
The accident is of a type that does not normally occur in the absence of negligence.
The instrumentality causing the injury was within the exclusive control of the defendant.
The plaintiff did not contribute to the injury.
Case Illustration: Byrne v. Boadle (Exch. 1863)
Facts: The plaintiff was walking past the defendant's shop when a barrel of flour rolled out of a window above and struck him. The plaintiff could not prove exactly how the barrel fell.
Holding: The court held that a barrel could not roll out of a warehouse window without some negligence, and that it was unlikely that anyone but the defendant or his servants was in control of it. The burden shifted to the defendant to prove he was not negligent.
Procedural Effect: In most American jurisdictions, res ipsa loquitur allows the case to go to the jury (it survives a directed verdict) and permits, but does not compel, an inference of negligence.
The analysis of duty and breach establishes the legal framework for liability. Duty defines the social boundaries of obligation, limiting liability to foreseeable victims and specific relationships. Breach measures the defendant's actions against the objective yardstick of the reasonable person, utilizing tools like the Hand Formula to balance risk and utility. Only once these hurdles are cleared does the analysis proceed to the complex questions of causation and damages, which are the subject of the following chapter.
"This chapter examines the essential elements of causation and damages in negligence actions, distinguishing between actual cause (cause-in-fact) and proximate cause (legal scope of liability). It explores the calculation of compensatory and punitive damages, alongside special doctrines such as Negligent Infliction of Emotional Distress and the 'eggshell skull' plaintiff rule. Finally, the chapter addresses the procedural shifts in burden of proof regarding multiple tortfeasors and the statutory frameworks for wrongful death and survival actions."
Having established that a defendant owed a duty of care and breached that duty, the plaintiff’s prima facie case of negligence remains incomplete without the critical nexus of causation and the demonstration of actual harm. This chapter analyzes the third and fourth elements of negligence: causation (divided into actual cause and proximate cause) and damages. Furthermore, it explores special doctrines that modify these general rules in specific contexts, such as emotional distress and wrongful death. The inquiry here shifts from the defendant’s conduct to the relationship between that conduct and the plaintiff’s injury, and finally, to the valuation of that injury.
Causation in tort law is a bifurcated inquiry. The plaintiff must prove both Cause-in-Fact (Actual Cause) and Proximate Cause (Legal Cause). While the former is largely a factual determination based on logic and science, the latter is a policy-driven limitation on the scope of liability.
The threshold question is whether the defendant’s conduct was a necessary antecedent to the plaintiff’s injury. The burden of proof rests on the plaintiff to establish this link by a preponderance of the evidence.
The standard rule for cause-in-fact is the sine qua non or "but-for" test. The plaintiff must show that "but for" the defendant’s negligence, the injury would not have occurred. If the injury would have happened regardless of the defendant’s breach, the breach is not the cause-in-fact.
The "but-for" test fails in scenarios involving redundant causation—where two independent forces occur simultaneously, and either one alone would have been sufficient to cause the harm (e.g., two independent fires merging to burn down a house). In such cases, courts apply the Substantial Factor Test. If the defendant’s conduct was a substantial factor in bringing about the harm, causation is established, even if the harm would have occurred without it due to the other force.
When multiple defendants act negligently, but only one caused the harm and the plaintiff cannot identify which one, the burden of proof on causation may shift to the defendants to exonerate themselves. This doctrine prevents the injustice of a blameless plaintiff failing to recover from proven wrongdoers.
Case Illustration: Summers v. Tice, 33 Cal. 2d 80 (1948)
Facts: The plaintiff and two defendants were hunting quail. Both defendants negligently fired their shotguns simultaneously in the direction of the plaintiff. The plaintiff was struck in the eye by a single pellet. It was impossible to determine which defendant’s gun discharged the injuring pellet.
Holding: The court held both defendants jointly and severally liable. Because both were negligent, it would be unfair to deny the plaintiff relief simply because he could not prove which specific bullet caused the injury. The burden shifted to each defendant to prove he was not the cause; failing that, both were liable.
Even if actual cause is proven, the law does not hold a tortfeasor liable for every infinite consequence of their negligence. Proximate cause serves as a mechanism to limit liability to consequences that bear a reasonable relationship to the negligent conduct.
The dominant test for proximate cause is foreseeability. A defendant is liable only for harms that were within the scope of the risk that made the conduct negligent in the first place. This principle was famously debated in the seminal case of Palsgraf.
Case Illustration: Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928)
Facts: Railroad guards negligently assisted a passenger boarding a moving train, causing him to drop a package. The package, unknown to the guards, contained fireworks, which exploded. The shockwave caused scales at the other end of the platform to fall, injuring Mrs. Palsgraf.
Holding (Cardozo, J.): The court found no liability. Cardozo formulated the "Zone of Danger" test. Negligence is not actionable in the air; it is a relational concept. Because the plaintiff was standing far away, she was not a foreseeable plaintiff to whom a duty was owed regarding the package. The risk of dropping a package does not entail the risk of an explosion injuring a distant bystander.
Dissent (Andrews, J.): Judge Andrews argued for a broader view of proximate cause based on direct causation and public policy. He posited that if a duty is breached to anyone, the tortfeasor should be liable for all proximate consequences, regardless of foreseeability, subject only to rough common sense and remoteness.
While Cardozo’s view on duty and foreseeability prevails in most jurisdictions, Andrews’ dissent influences the treatment of intervening causes and the extent of damages.
An intervening cause is a force that takes effect after the defendant’s negligence and contributes to the injury. If the intervening cause is foreseeable (e.g., medical malpractice treating the victim, or a rescuer getting injured), the defendant remains liable. However, if the intervening act is unforeseeable and independent—termed a superseding cause—it breaks the chain of causation, absolving the original defendant of liability for the subsequent harm. Acts of nature (Acts of God) or intentional criminal acts by third parties are often, though not always, considered superseding.
A vital exception to the foreseeability limitation is the "Eggshell Skull" rule. This doctrine states that a defendant takes the plaintiff as they find them. If a defendant negligently injures a plaintiff, they are liable for the full extent of the physical injury, even if the plaintiff had a pre-existing condition that made the injury far more severe than a normal person would suffer. This applies to the extent of harm, not the type of harm.
Damage is an essential element of the prima facie case; nominal damages are generally unavailable in negligence. The primary goal of tort damages is to restore the plaintiff to the position they would have occupied had the tort not occurred.
Compensatory damages are categorized into two types:
Special Damages (Pecuniary): These are quantifiable economic losses, such as medical expenses, lost wages, and cost of repair. They must be pleaded with specificity.
General Damages (Non-Pecuniary): These compensate for intangible harms, primarily pain and suffering, emotional distress, and loss of enjoyment of life.
Under the traditional common law Collateral Source Rule, payments made to the plaintiff from third-party sources (such as health insurance or workers' compensation) are not deducted from the damages the defendant owes. The policy rationale is that the tortfeasor should not benefit from the plaintiff’s foresight in acquiring insurance.
The "Doctrine of Avoidable Consequences" prevents a plaintiff from recovering damages that could have been avoided by reasonable conduct after the injury. For example, if a plaintiff refuses necessary surgery that would cure the injury, they cannot recover for the permanent disability that results from that refusal.
Punitive damages are not intended to compensate the plaintiff but to punish the defendant and deter future misconduct. In negligence, they are generally reserved for cases involving "gross negligence," "recklessness," or "willful and wanton" conduct. Mere inadvertence is insufficient to warrant punitive awards.
Certain scenarios require specialized rules that deviate from standard negligence principles, particularly regarding the scope of liability for non-physical harms.
Historically, courts were reluctant to allow recovery for emotional distress without a physical impact due to fears of fraudulent claims. Modern courts have expanded liability under specific constraints.
The majority rule allows a plaintiff to recover for NIED if they were: (1) within the "zone of danger" of physical impact created by the defendant’s negligence; and (2) suffered physical manifestations of the distress (e.g., a heart attack or miscarriage).
A more expansive approach allows recovery for a bystander who witnesses a traumatic injury to a loved one, even if the bystander was outside the zone of danger. The seminal case establishing this framework is Dillon v. Legg.
Case Illustration: Dillon v. Legg, 68 Cal. 2d 728 (1968)
Facts: A mother witnessed her child being struck and killed by a car. The mother was not in the path of the vehicle (outside the zone of danger) but sued for emotional distress.
Holding: The court allowed recovery based on foreseeability, establishing three factors: (1) the plaintiff was located near the scene of the accident; (2) the shock resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident; and (3) the plaintiff and the victim were closely related.
At common law, tort actions died with the victim (*actio personalis moritur cum persona*). Modern statutes have remedied this:
Survival Statutes: Allow the estate to sue for claims the deceased could have brought had they lived (e.g., pain and suffering prior to death).
Wrongful Death Statutes: Create a new cause of action for the surviving family members to recover for their own losses resulting from the death (e.g., loss of support, companionship).
In conclusion, the transition from breach to liability requires a rigorous application of the "but-for" and foreseeability tests. While the law seeks to make plaintiffs whole through compensatory damages, it simultaneously employs proximate cause and special duty rules to prevent liability from becoming indeterminate and crushing.
"Chapter 6 examines the imposition of liability without fault, beginning with traditional strict liability for wild animals and abnormally dangerous activities as defined by Rylands v. Fletcher and the Restatement. It then details the evolution of products liability from negligence and warranty roots to the modern strict liability standard, distinguishing between manufacturing, design, and warning defects. Finally, the chapter addresses key defenses such as comparative fault and product misuse, alongside the policy rationales of risk allocation and consumer protection."
While the dominant paradigm of modern tort law is negligence—predicated on the moral failing of the defendant to exercise reasonable care—there exists a significant subset of tort law where liability is imposed regardless of fault. This chapter explores the doctrine of strict liability, where the defendant is held liable for damages caused by their actions or products irrespective of their intent or the level of care exercised. We begin by examining the historical roots of strict liability in the context of animals and abnormally dangerous activities, before turning to the massive and economically vital field of products liability. This evolution represents a shift in judicial policy from correcting individual moral wrongs to allocating risk in a complex, industrialized society.
The common law has long imposed strict liability on those who keep animals, though the application varies significantly depending on the classification of the animal as either wild or domestic.
Under the English common law, possessors of livestock (cattle, horses, sheep, etc.) were strictly liable for the physical harm done by the animals if they trespassed on the land of another. This rule was based on the notion that an owner acts at their peril when keeping animals capable of roaming. However, in the developing United States, particularly in the West, this rule was often rejected in favor of "fencing-out" statutes, which required landowners to fence their property to claim damages. Modernly, many jurisdictions have returned to the common law rule or "fencing-in" statutes, requiring owners to restrain their livestock.
A possessor of a wild animal is subject to strict liability for harm done by the animal to another person, land, or chattels, provided the harm results from a dangerous propensity that is characteristic of wild animals of that class, or of which the possessor knows or has reason to know. This liability exists even if the possessor has exercised the utmost care to confine the animal.
The definition of a "wild animal" is a legal question, not a biological one. It refers to animals that have not been generally domesticated and are likely, unless restrained, to cause personal injury. Lions, tigers, and bears fall squarely within this category.
Conversely, owners of domestic animals (dogs, cats, farm animals) are generally liable only for negligence. However, the "Scienter Action," colloquially known as the "One Bite Rule," provides an exception. If the owner knows or has reason to know that a specific domestic animal has abnormal dangerous propensities (e.g., a dog that has previously bitten a human), the owner becomes strictly liable for subsequent harm caused by that propensity.
The second major category of traditional strict liability concerns activities that are so inherently dangerous that the risk of harm cannot be eliminated by the exercise of reasonable care. The seminal authority for this doctrine is the English case of Rylands v. Fletcher.
Case Illustration: Rylands v. Fletcher (1868)
Facts: The defendants, mill owners, constructed a reservoir on their land. The water broke through filled-in mine shafts and flooded the plaintiff's adjoining coal mines. The defendants were not negligent in the construction, having hired competent engineers.
Holding: The House of Lords held the defendants liable. Justice Blackburn formulated the rule: "[T]he person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."
Significance: This established that liability could attach to "non-natural" uses of land that create exceptional risks to others.
American courts have refined the rule from Rylands. The Restatement (Second) of Torts §§ 519-520 outlines the factors courts weigh to determine if an activity is "abnormally dangerous":
Existence of a high degree of risk of some harm to the person, land, or chattels of others;
Likelihood that the harm that results from it will be great;
Inability to eliminate the risk by the exercise of reasonable care;
Extent to which the activity is not a matter of common usage;
Inappropriateness of the activity to the place where it is carried on; and
Extent to which its value to the community is outweighed by its dangerous attributes.
Common examples include blasting with explosives, crop dusting, and the storage of large quantities of toxic chemicals. It is crucial to note that strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous.
Products liability is a hybrid area of law, blending contract (warranty) and tort principles. Its evolution traces the erosion of the doctrine of privity.
Originally, under the rule of Winterbottom v. Wright (1842), a manufacturer owed no duty of care to a consumer with whom they had no direct contractual relationship (privity of contract). This barrier was dismantled in the landmark case of MacPherson v. Buick Motor Co.
Case Illustration: MacPherson v. Buick Motor Co. (1916)
Facts: The plaintiff purchased a Buick from a retail dealer. A wheel, made of defective wood, collapsed, injuring the plaintiff. Buick had bought the wheel from a subcontractor but failed to inspect it adequately.
Holding: Judge Cardozo held that if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, the manufacturer is under a duty to make it carefully, regardless of contract.
Significance: This extended the duty of care in negligence to the ultimate consumer, effectively abolishing the privity requirement in negligence actions.
While MacPherson established negligence liability, proving negligence against a remote manufacturer remained difficult. Courts briefly flirted with the fiction of "implied warranties" running with the goods, but eventually, the California Supreme Court cut the Gordian knot in Greenman v. Yuba Power Products, Inc.
Case Illustration: Greenman v. Yuba Power Products, Inc. (1963)
Facts: The plaintiff was injured by a defectively designed Shopsmith combination power tool. He sued the manufacturer despite having no privity and failing to provide timely notice of breach of warranty.
Holding: Justice Traynor declared that "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being."
Significance: This case established strict liability in tort as an independent cause of action, distinct from contract warranties, to ensure that the costs of injuries resulting from defective products are borne by the manufacturers rather than the injured consumers.
Following Greenman, the Restatement (Second) of Torts § 402A became the gold standard. However, the Restatement (Third) of Torts: Products Liability refined the doctrine by distinguishing between three distinct categories of defects: manufacturing defects, design defects, and warning defects.
A manufacturing defect occurs when a product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. This is the "lemon" scenario—a single unit that differs from the assembly line standard.
Standard: This is true strict liability. The plaintiff need only prove the product deviated from the manufacturer's own specifications and that this deviation caused the injury. The manufacturer's quality control efforts are irrelevant to liability.
A design defect exists when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design. Here, the entire product line is challenged.
Courts generally employ one of two tests (or a combination thereof) to determine if a design is defective:
Consumer Expectation Test: A product is defective if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.
Risk-Utility Test: A product is defective if the risk of danger inherent in the design outweighs the benefits of such design. Courts consider factors such as the gravity of the danger, the likelihood of injury, the mechanical feasibility of a safer alternative design, and the financial cost of an improved design.
The Restatement (Third) heavily favors the Risk-Utility test and generally requires the plaintiff to prove the existence of a "Reasonable Alternative Design" (RAD).
A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm could have been reduced or avoided by the provision of reasonable instructions or warnings. This is essentially a negligence standard wrapped in strict liability language, as it turns on what the manufacturer "knew or should have known" about the risk.
The Heeding Presumption: In many jurisdictions, courts apply a rebuttable presumption that if an adequate warning had been given, the plaintiff would have read and heeded it.
Strict liability is not absolute liability; manufacturers are not insurers of safety. Several defenses apply.
Historically, contributory negligence was not a defense to strict liability. However, with the universal adoption of comparative fault systems, most jurisdictions now allow the plaintiff's recovery to be reduced by their percentage of fault. This includes situations where the plaintiff negligently failed to discover the defect or guard against its existence.
If a plaintiff discovers the defect, understands the danger, and nevertheless unreasonably proceeds to use the product, this constitutes assumption of risk. In many jurisdictions, this remains a complete bar to recovery, though some merge it into comparative fault.
Manufacturers are liable for injuries caused by foreseeable misuse of the product. However, unforeseeable misuse or substantial alteration of the product by a third party (or the plaintiff) that serves as a superseding cause may relieve the manufacturer of liability.
Strict products liability is generally reserved for physical harm to persons or property other than the product itself. If a product simply fails to work and damages only itself, causing economic loss, the plaintiff is usually relegated to contract law remedies (UCC warranties) rather than tort.
The imposition of strict liability, particularly in the products context, rests on several policy pillars:
Loss Spreading: Manufacturers can insure against liability and distribute the cost among all consumers via price increases.
Deterrence/Safety Incentives: Strict liability incentivizes manufacturers to invest in safer designs and quality control.
Proof Problems: It is often impossible for a consumer to prove exactly where negligence occurred in a complex global supply chain.
Consumer Reliance: Manufacturers market products aggressively, inducing consumer reliance on their safety.
"This chapter explores affirmative defenses, including the evolution from contributory to comparative negligence and the doctrine of assumption of risk, which can bar or reduce a plaintiff's recovery. It further examines immunities that shield specific defendants, such as governments and family members, and analyzes vicarious liability principles like *respondeat superior* that impute liability to employers. Finally, the chapter addresses joint and several liability, detailing how damages are allocated among multiple tortfeasors through contribution and indemnity."
Having established the prima facie elements of intentional torts, negligence, and strict liability in the preceding chapters, we now turn to the final stage of the tort litigation analysis: affirmative defenses, immunities, and the allocation of liability among multiple parties. It is not sufficient for a plaintiff to merely prove duty, breach, causation, and damages. The defendant may still avoid or reduce liability by raising affirmative defenses—new facts that defeat the plaintiff's claim even if the allegations are true—or by asserting immunity based on status. Furthermore, this chapter examines how the law allocates responsibility when the tortfeasor is an agent of another or when multiple tortfeasors contribute to a single indivisible injury.
Historically, the common law provided an all-or-nothing approach to negligence defenses. If a plaintiff contributed in any way to their own injury, recovery was barred entirely. Modern tort reform has largely supplanted these harsh rules with systems of apportionment, though the traditional doctrines remain conceptually vital for understanding the evolution of the law.
At common law, contributory negligence is a complete bar to recovery. If the plaintiff failed to exercise reasonable care for their own safety, and that failure was a proximate cause of the injury, the defendant is absolved of all liability, regardless of the defendant's degree of fault. This doctrine rests on the clean hands principle and the notion that the law should not aid one who is the author of their own misfortune.
Case Illustration: Butterfield v. Forrester (1809)
Facts: The defendant placed a pole across a public road while making repairs to his house. The plaintiff, riding his horse violently down the road at dusk, struck the pole and was injured. A witness testified that if the plaintiff had not been riding so hard, he might have observed and avoided the obstruction.
Holding: The court held that a plaintiff cannot recover for an obstruction in the road if they did not use common and ordinary caution to avoid it. One person being in fault will not dispense with another's using ordinary care for himself.
The harshness of this rule led to the development of the Last Clear Chance doctrine. This exception allows a negligent plaintiff to recover if the defendant had the last clear opportunity to avoid the accident but failed to do so. For example, if a plaintiff negligently falls asleep on railroad tracks, and the conductor sees them in time to stop but negligently fails to brake, the plaintiff may recover despite their initial negligence.
The vast majority of jurisdictions have abandoned the all-or-nothing contributory negligence rule in favor of comparative negligence. This doctrine apportions damages based on the relative fault of the parties. There are two primary regimes:
Pure Comparative Negligence: The plaintiff may recover regardless of their percentage of fault, but damages are reduced by that percentage. A plaintiff who is 99% at fault may still recover 1% of their damages.
Modified Comparative Negligence: The plaintiff may recover only if their negligence does not exceed a certain threshold (usually 50% or 51%). If the plaintiff is more at fault than the defendant, recovery is barred entirely.
Case Illustration: Li v. Yellow Cab Co. of California (1975)
Facts: The plaintiff attempted to cross three lanes of oncoming traffic to enter a service station. The defendant's driver was speeding and ran a yellow light, striking the plaintiff. Under the existing contributory negligence rule, the plaintiff would be barred from recovery.
Holding: The California Supreme Court judicially abolished contributory negligence, adopting a system of pure comparative negligence. The court reasoned that liability must be borne by those whose negligence caused it in direct proportion to their respective fault, finding the "all-or-nothing" rule inequitable.
Assumption of risk arises when a plaintiff voluntarily encounters a known danger. This defense is grounded in the maxim volenti non fit injuria—to a willing person, injury is not done. This defense is categorized into express and implied forms.
Express Assumption of Risk: This occurs when parties agree in advance, usually via contract (exculpatory clauses), that the defendant need not exercise due care for the plaintiff's safety. Courts generally enforce these waivers unless they violate public policy (e.g., waivers for essential public services like medical care) or cover intentional/grossly negligent conduct.
Implied Assumption of Risk: This occurs when the plaintiff's conduct demonstrates a willingness to accept a specific risk. The defendant must prove the plaintiff: (1) had actual knowledge of the specific risk, (2) appreciated the magnitude of the danger, and (3) voluntarily encountered it.
Case Illustration: Murphy v. Steeplechase Amusement Co. (1929)
Facts: The plaintiff was injured while riding "The Flopper," an amusement park attraction featuring a moving belt that caused participants to fall. The plaintiff claimed the ride was dangerous.
Holding: Chief Judge Cardozo held that the risk of falling was the very invitation of the ride. "The timorous may stay at home." By observing the ride and choosing to participate, the plaintiff assumed the inherent risks of the activity.
In jurisdictions adopting comparative negligence, implied secondary assumption of risk (where the plaintiff acts unreasonably in assuming a risk) is often merged into the comparative fault analysis, merely reducing damages rather than barring them. However, primary assumption of risk (where the defendant owes no duty to protect the plaintiff from inherent risks, such as in sports) remains a complete bar.
Unlike defenses, which deny liability based on the facts of the interaction, immunities deny liability based on the status of the defendant. The modern trend in tort law has been the erosion or limitation of these immunities.
Derived from the English maxim "the King can do no wrong," sovereign immunity historically protected federal and state governments from tort liability. Today, this immunity has been largely waived by statute, though significant exceptions remain.
The Federal Tort Claims Act (FTCA): The FTCA waives the U.S. government's immunity for negligent acts of government employees acting within the scope of employment. However, the Discretionary Function Exception retains immunity for acts involving judgment or policy choices. If a government official makes a decision grounded in social, economic, or political policy, the government cannot be sued, even if the decision was negligent.
At common law, spouses could not sue each other, and children could not sue parents. The legal fiction was that the husband and wife were one person, and suing oneself was impossible. Additionally, courts feared such suits would disrupt domestic tranquility or lead to fraud against insurance companies.
Most jurisdictions have abolished spousal immunity. Parental immunity has also been significantly restricted. While children generally cannot sue parents for negligent supervision (preserving parental discretion in child-rearing), they may often sue for intentional torts or negligence in the operation of a motor vehicle.
Vicarious liability imposes liability on one person for the torts of another based on their relationship. The most prominent form is respondeat superior.
Under respondeat superior ("let the master answer"), an employer is strictly liable for the torts of an employee committed within the scope of employment. This is not based on the employer's negligence, but on public policy: employers control the employees' acts, benefit from the enterprise, and are in the best position to spread the costs of accidents (deep pockets).
Scope of Employment: Liability attaches only if the act is connected to the employment. Courts analyze whether the conduct was of the general kind the employee was hired to perform, occurred within authorized time and space limits, and was motivated, at least in part, by a purpose to serve the employer.
Frolic vs. Detour: A critical distinction exists regarding employee deviations:
Detour: A minor deviation from the employer's business for personal reasons (e.g., stopping to buy a soda while on a delivery route). The employer remains liable.
Frolic: A substantial abandonment of the employer's business (e.g., driving a company truck 20 miles off-route to visit a friend). The employer is not liable until the employee re-enters the scope of employment.
Generally, a principal is not vicariously liable for the torts of an independent contractor. The distinction lies in the right of control: principals control the result of a contractor's work, but not the manner and means of performance. However, exceptions exist where liability cannot be delegated:
Inherently Dangerous Activities: If the work involves peculiar risks (e.g., blasting, excavation), the principal remains liable.
Non-Delegable Duties: Duties owed to the public (e.g., a store owner's duty to keep premises safe) cannot be offloaded to a contractor to avoid liability.
When multiple tortfeasors contribute to an indivisible injury, the question arises: who pays? Under Joint and Several Liability, each tortfeasor is individually responsible for the entire judgment. The plaintiff may collect 100% of the damages from Tortfeasor A, even if Tortfeasor A was only 10% at fault.
This doctrine favors the innocent plaintiff, ensuring full recovery even if one defendant is insolvent. However, to mitigate unfairness among defendants, the law provides for:
Contribution: A defendant who pays more than their share of liability may sue other joint tortfeasors to recover the excess.
Indemnity: A complete shifting of the loss from one party to another, usually where one party is vicariously liable for the other's active negligence.
Many jurisdictions have modified this rule in light of comparative negligence, limiting joint and several liability to defendants whose fault exceeds a certain percentage or abolishing it in favor of several liability (where defendants pay only in proportion to their specific fault).
The landscape of tort liability is not defined solely by the plaintiff's injury but is shaped by the interplay of defenses, immunities, and vicarious relationships. Whether through the comparative reduction of damages, the shielding of discretionary government acts, or the imputation of liability to employers, these doctrines reflect the complex policy balancing act between compensating victims, deterring unsafe conduct, and allocating loss to those best able to bear it.
As you reach the culmination of your journey through "Torts Unleashed: Mastering the Multistate Bar Exam," remember that excelling in Torts for the MBE is less about rote memorization and more about cultivating a profound understanding of its foundational principles and their strategic application. We've meticulously dissected the elements of intentional torts, navigated the intricate landscape of negligence, explored the strictures of strict liability, and delved into the complexities of dignitary and economic torts.
The Multistate Bar Exam is a test of your ability to identify issues, apply the correct rules, and understand the subtle nuances that distinguish one tortious scenario from another. Approach each question with a methodical mind, meticulously breaking down the facts, recalling the precise elements of each potential claim or defense, and considering all plausible outcomes. Consistent practice, diligent review, and critical thinking are your most potent weapons against the exam's challenges.
Torts law, while vast and often nuanced, is built upon logical and interconnected principles. By internalizing these principles and regularly engaging with a diverse array of practice questions, you will not only build unwavering confidence but also cultivate the intuitive understanding essential for high performance. Go forth, unleashed and thoroughly prepared, to conquer the Torts section of the Multistate Bar Exam. Your mastery awaits!