TORTS — BAR ONE-SHEET (ELEMENTS & MNEMONICS)
Lean issue-spotting checklist — elements and mnemonics only. Pair with the full Torts Master Outline for depth, then drill questions at MBEMax.
KEY PRINCIPLE #1 — INTENTIONAL TORTS (PRIMA FACIE: act + intent + causation)
Intent = purpose OR substantial certainty. Transferred intent applies among: assault, battery, false imprisonment, trespass to land, trespass to chattels. Incapacity/insanity NO defense.
- BATTERY = harmful/offensive contact with P's person (incl. things connected). No damages required.
- ASSAULT = reasonable apprehension of imminent harmful/offensive contact + apparent ability. Words alone usually insufficient.
- FALSE IMPRISONMENT = act confining P to bounded area + P aware or harmed. No reasonable means of escape. Moral pressure/future threats insufficient.
- IIED = extreme & outrageous conduct + intent/recklessness + severe emotional distress. Bystander: present + close relative + D knows (or, if not present, contemporaneous + D knew of relation).
- TRESPASS TO LAND = physical invasion of land. Mistake no defense. Intangible/no entry → nuisance.
- TRESPASS TO CHATTELS = interference (dispossession/damage); recover actual damages.
- CONVERSION = interference so serious → forced sale (full value). Only personal property.
DEFENSES — mnemonic "CDPND": Consent (express/implied; exceed scope = tort) · Defense of self/others (reasonable force; no deadly to protect property) · Property defense · Necessity (public = complete; private = pay actual damage) · Discipline.
KEY PRINCIPLE #2 — NEGLIGENCE (mnemonic "DBCD": Duty · Breach · Causation · Damages)
DUTY: owed to foreseeable Ps (Cardozo zone of danger; Andrews = all). Standard = reasonable prudent person.
- Special standards: children (like age/intelligence/experience — unless adult activity) · professionals (custom of profession) · common carriers/innkeepers (high duty) · landowner (below).
- Affirmative duty to act: none, UNLESS — assumed duty, created peril, special relationship, statute, contract.
- NIED: zone of danger + physical symptoms; or bystander (close relative + present + observed).
LANDOWNER DUTY: undiscovered trespasser = none · discovered/anticipated trespasser = warn of known hidden artificial death-traps · licensee (social guest) = warn known hidden dangers · invitee (business/public) = reasonable inspection + repair. Attractive nuisance (child trespasser): artificial condition + likely presence + child can't appreciate + low burden vs risk.
BREACH: Hand formula B < P × L. Negligence per se = violate statute + P in class + harm type statute prevents (excused if compliance more dangerous/impossible). Res ipsa loquitur = accident type normally from negligence + instrumentality in D's exclusive control + P not at fault.
CAUSATION: Actual = but-for (multiple sufficient → substantial factor; unknown D → alternative liability shifts burden). Proximate = foreseeability. Intervening forces foreseeable (rescue, medical malpractice, subsequent disease/accident); superseding (unforeseeable crime/intentional tort) cuts off. Eggshell plaintiff — take P as found.
DAMAGES: actual harm required (no nominal). Mitigate. Collateral source rule.
KEY PRINCIPLE #3 — NEGLIGENCE DEFENSES
- Contributory negligence (minority) = complete bar; last clear chance escapes.
- Comparative negligence = reduce by P's %. Pure (any %) vs modified (barred if >50%).
- Assumption of risk = knew + voluntary. Express (waiver) or implied.
KEY PRINCIPLE #4 — STRICT LIABILITY
- ANIMALS: wild (always SL for dangerous propensity) · domestic (SL only if known vicious propensity) · trespassing livestock.
- ABNORMALLY DANGEROUS ACTIVITY: high risk of serious harm + can't eliminate by reasonable care + uncommon (explosives, blasting, toxic chemicals).
- SL limited to harm from the normally dangerous propensity; defenses = comparative.
KEY PRINCIPLE #5 — PRODUCTS LIABILITY
Theories: negligence · strict liability · implied warranty · express warranty/misrep.
STRICT PRODUCTS LIABILITY ELEMENTS:
- Commercial seller (in business of selling — not casual).
- Defective when left D: manufacturing (deviates from intended) · design (reasonable alternative design / consumer expectation) · warning (inadequate warning of non-obvious risk).
- No substantial alteration; foreseeable use.
- Causation + damages (personal injury/property; pure economic loss NOT recoverable in tort).
P need NOT be in privity. Defenses: comparative fault, misuse unforeseeable.
KEY PRINCIPLE #6 — DEFAMATION (mnemonic "DPFD": Defamatory · Publication · Falsity · Damages)
- Defamatory statement of/concerning P (living person; opinion implying fact counts).
- Publication to 3rd party (intent/negligence).
- Falsity (matter of public concern).
- Damages: libel (written — presumed) · slander (spoken — need special damages UNLESS slander per se: crime, loathsome disease, business/profession, unchastity).
CONSTITUTIONAL OVERLAY: public official/figure → actual malice (knowledge of falsity or reckless disregard — NY Times v. Sullivan). Private figure + public concern → at least negligence (presumed/punitive need malice). Defenses: truth, absolute privilege (judicial/legislative/spousal), qualified privilege (good faith on proper occasion).
KEY PRINCIPLE #7 — PRIVACY, ECONOMIC & MISC TORTS
PRIVACY — mnemonic "FLIP": False light (highly offensive + publicity) · Loss of seclusion / intrusion (highly offensive to reasonable person) · Intrusion upon seclusion · Publication of private facts; + Appropriation of name/likeness. (Newsworthiness/consent defenses.)
FRAUD/MISREP: false material rep + scienter + intent to induce + justifiable reliance + damages. Negligent misrep = commercial + foreseen P.
NUISANCE: private = substantial + unreasonable interference with use/enjoyment of land. Public = unreasonable interference with community right (private suit needs unique harm).
BUSINESS: intentional interference with contract/prospective advantage; malicious prosecution; abuse of process.
KEY PRINCIPLE #8 — VICARIOUS LIABILITY & MULTIPLE DEFENDANTS
- Respondeat superior = employer liable for employee acts in scope (frolic vs detour; intentional torts only if job-related).
- Independent contractor = generally NOT liable (exceptions: inherently dangerous, non-delegable duty).
- Joint & several liability; contribution (comparative) and indemnity (out-of-pocket / vicarious).
ADDITIONAL HIGH-YIELD POINTS
Wrongful death & survival. Survival action = decedent's own pre-death claims pass to the estate. Wrongful death = beneficiaries recover their own losses (support, services); generally reduced by the decedent's comparative fault and subject to the defenses good against the decedent.
Loss of consortium. Spouse (and often parent/child) may recover for lost society, services, and companionship — a derivative claim reduced by the injured party's own fault.
Negligent entrustment / hiring / supervision. Direct (not vicarious) liability for entrusting a dangerous instrument to one known to be unfit, or for hiring/retaining a dangerous employee. Separate from respondeat superior, so it reaches conduct outside the scope of employment.
Dram shop & social host. By statute, a vendor (and sometimes a social host) may be liable to third persons injured by an intoxicated patron — especially for serving minors or obviously intoxicated guests.
Auto-owner liability doctrines. Family-purpose doctrine = owner liable for family members driving with permission. Permissive-use/owner-consent statutes extend liability to any permitted driver. Negligence is not otherwise imputed merely by ownership.
Firefighter's rule. Police and firefighters generally cannot recover for risks inherent in their job created by the negligence that summoned them; recovery survives for independent or concealed hazards.
Custom evidence. Industry custom is relevant but not conclusive on breach (a whole industry can be negligently behind the times). Professional custom, by contrast, usually sets the standard of care.
Informed consent. Physician must disclose material risks a reasonable patient would want; failure is negligence even if the procedure itself was performed competently — causation requires that disclosure would have changed the decision.
Good Samaritan & recreational-use statutes. Gratuitous emergency aid may be shielded from ordinary-negligence liability (gross negligence still actionable). Landowners opening land for free recreation owe only a duty not to willfully/wantonly injure.
Negligence with multiple defendants — apportionment. Under comparative fault, fault is divided by percentages; many jurisdictions abolish joint & several liability for purely several allocation. A defendant who pays more than its share seeks contribution; a passively/vicariously liable party seeks full indemnity.
Indemnity categories. Full shifting of loss available for vicarious liability, the retailer-to-manufacturer chain in products cases, and where one party is merely passively at fault against an actively negligent party.
Public nuisance — standing & remedies. A private plaintiff suing on a public nuisance must show harm different in kind (not just degree) from the general public. Remedies for nuisance: damages, injunction (balancing equities), or self-help abatement after notice.
Intentional interference — elements. Valid contract or expectancy + D's knowledge + intentional inducement of breach/disruption + damages. Interference with a mere prospective advantage is more easily justified (competition privilege).
Malicious prosecution & abuse of process. Malicious prosecution = institution of proceedings without probable cause, for an improper purpose, terminated in P's favor, causing damages. Abuse of process = using a proper process for an ulterior purpose plus a willful act — no favorable-termination requirement.
Trespasser-created conditions & off-premises duty. A landowner must take reasonable care that artificial conditions and activities do not unreasonably endanger persons off the premises (e.g., passersby on an adjacent road); natural conditions generally impose no such duty (urban-tree exception).
Defamation damages & SLAPP overlay. Even a private-figure plaintiff suing on a matter of public concern must prove actual injury to recover; presumed and punitive damages require actual malice. Truth and opinion (no provably false fact) remain complete defenses.
★ ONE-LINE ATTACK ORDER
Identify tort category → Intentional (act/intent/causation + defenses) → Negligence (Duty-Breach-Causation-Damages; landowner status; per se/res ipsa) → Defenses (comparative/assumption) → Strict liability (animals/ADA/products) → Defamation & privacy (constitutional overlay) → Economic/nuisance → Vicarious liability → Damages & apportionment.