April 3, 2012

Tort Law Bar Exam Outline for Law Students

This is what a sample law school and bar exam outline looks like for the topic of Torts.


5 Main Areas to know:
1.      Intentional Torts
A.    Assault
B.     Battery
C.     False Imprisonment
D.    IIED
E.     Conversion
F.      Trespass to Chattels
G.    Trespass to Land
2.   Negligence
3.      S/L
A.    Ultra-hazardous Activities
B.     Wild Animals
C.     Products Liability
4.      Defamation
5.      Nuisance - thing complained of creates a substantial and unr/b interference with one’s use and enjoyment of the property

I.    Intentional Torts
A.  Three types:
1.      Specific - D acts intending to cause the consequences of his or her act.
2.      General - substantial certainty that conduct will result in the consequences.
3.      Transferred Intent - where D intends tortious conduct against one party but the resultant harm is caused against another (only applies to assault, battery, false imprisonment, trespass to land, trespass to chattels).
4.      Minors and incompetents are generally held liable for intentional torts.

B. Battery
1.      Where D acts intending to cause an offensive or harmful contact with another and a offensive or harmful contact results.
2.      Extends to items which are an extension of the P’s person (i.e. operating a car, holding a stick, a chair someone is about to sit on)
3.      Key is that D is acting to damage P’s sense of dignity; protection from unpermitted contacts.
4.      Awareness of contact not required.
5.      Damages not required.

C.     Assault
1.      Where D acts to place the D in imminent apprehension of unpermitted contact and the P is placed in such imminent apprehension.


2.      Assault is like a mental tort - look to the P’s subjective state of mind.
3.      Apprehension is required for assault.  The P must have knowledge and awareness. 
4.      Future threats lack imminency and words alone (w/o overt act) are both insufficient.
5.      It is not uncommon that an assault merges into a battery if an offensive touching occurs as a result of the assault.
6.      If P is placed in fear than the P may also require (it’s more egregious than apprehension.

D.    False Imprisonment
1.      Three elements:
a.       D intends to confine P within certain fixed boundaries where there is no r/b means of escape.
b.      D’s conduct does (directly or indirectly) cause such confinement.
c.       P is aware of confinement.  If not aware only recovery if P harmed by confinement.
2.      Only exception where awareness is not required - children, incompetents or morons.
3.      Confinement may result from physical or threats of force.
4.      An unlawful arrest may also constitute false imprisonment.
5.      Can result no matter how short the time period.
6.      No action will result under shopkeeper’s privilege if:
a.       r/b grounds to believe theft has occurred.
b.      detention is in a r/b manner.
c.       detention limited to r/b period of time to make an investigation (30 minutes is too long b/c could just ask to look in pocketbook).
7.      Shopkeeper’s privilege is a very limited privileged.

E.     Infliction of Mental Distress
1.      Two elements:
a.       D’s conduct is extreme and outrageous.
b.      P must suffer severe emotional distress.
2.      No physical harm is required.
3.      Often tested where a third-person is present.  The third person can recover if (a) third person is a close family member and (b) D is aware of the presence of the third person when they engaged in the conduct. If non-family member then physical harm is required.
4.      IIED permissible when D’s conduct is reckless and negligent.
5.      NIED requires duty of cared owed, P is foreseeable within the ZOD, and D’s conduct is negligent (does not have to be outrageous).

F.      Trespass to Land
1.      Person subject to liability for trespass where he/she intentionally enters land of another or causes a thing, object or third person to enter land of another without permission.


2.      Mistake is not a defense.
3.      Trespass can be committed on the land, above the land, or underneath the land.
4.      Used to require an object but modern view includes microscopic particles such as dust or invisible gases.
5.      Subterranean Trespass may include drilling operations extending under the neighbors land.
6.      Privileged Entries are available in public and private necessity.  Private necessity might be an airplane making an emergency landing.  The pilot is not liable for trespass but is liable for damage to the land.  Public necessities have absolute privilege and are discussed further below.
7.      Non-intentional Forms of Trespass
a.       Negligent or reckless entries create no liability for trespass unless damage is caused to the property.
b.      No liability for accidental entries that are non-negligent and unintentional (i.e. golf ball hit into a yard).
8.      Summary --> intentional, negligent, and accidental types of entries.

G.    Trespass to Chattels
1.      Where the D slightly damages or intermeddles with the property of another.  The difference with conversion is the seriousness of the damage b/c the more serious the damage the more interference there is with property.
2.      D is only liable for the diminished value of the chattel in trespass to chattels cases.

H.    Conversion
1.      Where D exercises dominion and control over the chattel of another and seriously interferes with the ownership rights of another.
2.      At CL the D was liable for the full value of the chattel b/c a forced sale was required.
3.      Conversion may exists when the scope of authorized use (bailment) is exceeded.
4.      Mistake is no defense to trespass to chattels or conversion.
5.      Factors used in determining the seriousness are:
a.       Extent and duration of dominion
b.      Whether D acts in good faith
c.       The harm done to chattel

I.       Defenses to Intentional Torts
1.      Privilege - justifies conduct which would otherwise be tortious.
2.      Mistake - will be a defense where D acts quickly to protect either personal interest or public interest.  Used where person r/bly believes they are being attack (mistaken self-defence) OR police officer makes arrest even though mistaken (just need r/b belief).
a. Not a defense to trespass or battery (mistaken kissing of women thought to be his wife).
3.      Consent - denote willingness for act or invasion to take place.
a. To one who is wiling, no wrong is done.


b.Can be express or implied consent.
c. Consent is invalid where incapacity exists.
d.      Exceeding Consent - must not exceed scope of the consent given (boxing match where one boxer decides to use brass knuckles).
4.      Self-Defense - when person has r/b grounds to believe they are about to be attacked they have the right to use r/b force to defend themselves against the potential injury.  NO duty to retreat.
5.      Defense of Others - same rules as in self-defense. 
a. Minority of states apply alter-ego rule where the intermeddler assumes risks that person being defended is not privileged to defend themselves in the same manner.
6.      Defense of Property - only r/b force is privileged.  No permission to use deadly force (spring gun) or serious bodily harm that is going to injure the trespasser.
7.      Recapture of Chattels - may use r/b force to recapture chattels. 
a. Generally won’t be held liable for entering another’s land to recover property but must first make a “demand.”
b.Minority holds:
(1)     if chattel tortiously taken the chattel then may use r/b force, OR
(2)     if chattle not wrongfully taken then may only use peaceful force to recover the chattel.
8.      Necessity - two types:
a. Public Necessity - absolute privilege and no damages are available.
b.Private Necessity - partial privilege b/c D can be held liable for damage to land.
9.      Arrest w/o Warrant
a. Tested with arrester being police officer or private citizen.
b.For misdemeanors, privileged if misdemeanor is a breach of the peace committed in the persons presence.
c. Private citizen arresting for felony --> the felony must in fact have been committed AND the D has r/b grounds to suspect the P committed the felony.
d.      Police officer arresting for felony --> reasonable grounds to believe felony was committed and r/b grounds to believe that the person arrested actually did it.
e. Difference is that private citizen must show the felony was committed and police officer must only r/bly believe felony was committed.
10.  Discipline - parents and school officials can use r/b force for disciplining and training a child.


II. Negligence

A.    Prima Facie Case:
1.      Duty of Care (owed by D to P)
2.      Breach of the Duty
3.      Proximate Legal Cause
4.      Damage to P’s person or property



B.     Duty of Care
1.      No duty to take precautions against risks which are unforeseeable.
2.      Duty only owed to foreseeable P’s in the zone of danger (Palsgraf).
3.      Duty of care also owed to rescuer who attempts to render asistance.
4.      Duty of care is owed to a fetus (prenatal injuries).
5.      Standards of Care
a. Usual standard is that of a reasonable, prudent person.  The RPP is considered to have the same characteristics as the D - a person in his position, with his information, and with the mental ability of an average person (mental status is no defense even if D is stupid or insane).
b.Particular standards of care:
(1)  Professionals - a doctor / lawyer is expected to exercise knowledge and skill of a person in good standing in the same locality.  Specialists (those who employ special skills) may be held liable where a GP would not, especially if the specialists holds themselves out as having special knowledge.

(2)  Children - required to conform to standard of care of child of like age, education, intelligence, and experience.  Most courts do not fix particular age for capacity to be negligent.   Generally, children under 4 won’t be held liable though the modern view holds children under 4 liable.
(a)  If engaged in adult activity (driving car, operating motor boat) the child is required to adhere to same standard of conduct as an adult engaged in that activity.

(3)  Common Carriers and InnKeepers - owe a special duty of care to passengers and guests and will be held liable for slight negligence.  They must exercise a high degree of care.
(a)  CL rule held auto passenger to be a licensee so driver is under duty to warn that passenger of known defects in the car.  Driver must also exercise reasonable care in operating the automobile.
(b)  Where a guest-statute is in effect, the driver’s only duty is to refrain from gross, wanton or reckless conduct.

(4)  Bailment Duties:
(a)  Gratuitous Bailments - i.e. lend car to friend to go to supermarket.  Rule is that duty of care is similar to that of a licensee where owner is under duty to warn bailee of known defects with respect to the chattel.
(b)  Bailment for Hire - higher duty of care.  Rule is that Bailor has duty to have chattel inspected and made safe for the bailee. 
(c)  General rule is that Bailee must exercise r/b or ordinary care.

(5)  Possessors of Land to Trespassers, Invitees, and Licensees -


(a)  Trepassers - Generally the owner owes no duty of care to a trespasser (i.e. undiscovered / unanticpated trespasser).  Discovered trespassers must be warned of known or artificial conditions on the property. 
(1)  No duty to warn of obvious, natural conditions on the land.
(b)  Licensees - people invited onto the property.  Only duty is to warn of conditions the owner is aware of.  No duty to make safe, inspect, etc..
(c)  Invitees - two types of invitees include Customers and people entering or visiting  public buildings. There is a duty:
(1) to inspect AN D
(2) make safe

(6)  Attractive Nuisance - allows recovery to trespassing children injured by artificial conditions on the land where:
(a)  artificial condition exists on land
(b)  possessor knows or has reason to know children are likely to trespass on property
(c)  child b/c of his youth, age or immaturity fails to appreciate the danger or realize risk of intermeddling with it (USES SUBJECTIVE STANDARD)
(d) utility of maintaining the risk is slight compared to risks involved.

(7)  Public Employees - where public employee comes onto property b/c of business on the property then the public employee is considered an invitee (i.e. meter maids, garbage collectors, postman, building inspectors are invitees).  However, firemen and policemen are mere licensees.

(8)  Lessors of Land - General rule is that LL not subject to liability after T takes possession.
(a)  Exceptions include
i.        common passageways, AND
ii.      existing traps or hidden dangers not likely to be discovered by tenant.

(9) Ommissions - Generally no duty of care to strangers in peril.  Except where duty created by:
(a)  family relationship
(b)  contract (i.e. lifeguards)
(c)  statute
(d) voluntary assumption of care (cannot place victim in more perilous position than you found them)
(e)  creation of peril (if you create the condition then you are liable for injuries caused by that condition)

(10) Good Sumaritan Statutes - statutes which exempt licensed doctors or


nurses who render assistance.  However, it does not exclude them from gross or negligent conduct.

C.     Breach of Duty
1.      Proof involves showing events leading up to event and showing that D acted unreasonably.
2.      Violation of Statute (Negligence Per Se)
a. Statute must be designed to protect against that type of injury occurring.
b.P is a member of the class of individuals sought to be protected by the statute.
3.      Res Ipsa Loquitor - the thing speaks for itself.  Inference of negligence in the air.
a. Two requirements:
(1)  P can demonstrate that accident causing his/her injury is of a type that would not normally occur unless someone was negligent.
(2)  The negligence is attributable to D and D was responsible for causing the injury.
b.Anytime you can establish a prima facie case of res ipsa then there will never be a motion for a directed verdict.

D.    Causation
1.      Must show both:
a. Causation in Fact
(1)     The factual or actual cause of the injury.
(2)     States employ different tests.  Some use the “but for” test while others use “actual cause” or “direct causation.”  There is also a “substantial factor” test.
(3)     Just because you find Causation in Fact does not make the person liable.  You must also show the D is legally responsible for his actions and the injury.
b.Legal Causation -must determine whether:
(1) Was the P foreseeable?
(2)     Was the consequence foreseeable?
2.      Multiple Causes
a. Where harm caused by two or more persons and P cannot determine who caused harm, the burden of prrof shifts to the D and they must show they did not cause the harm.  Absent such showing both Ds will be held liable.
b.Decide whether P suffers divisible or indivisible injury capable of apportionment.
c. If divisible then each D only liable for the harm that D caused.
3.      Intervening Causes
a. These are forces which operate in producing harm or the injury after the original tortfeasor’s negligent act or omission has been committed.
b.The key question is whether the original tortfeasor is liable for the new or aggravated injury from the new cause.  To answer ask whether the intervening cause is foreseeable - if it is then the original tortfeasor is liable.


c. If the intervening cause is not foreseeable then it is considered a superceding cause and it breaks the chain of causation.  Therefore, the original tortfeasor is only liable for the initial injuries.  These include:
(1)     Acts of God (does not apply in S/L cases)
(2)     Criminal acts of third persons
(3)     Intentional acts of third persons
d.      Foreseeable intervening causes include:
(1)     Rescuers
(2)     Subsequent medical malpractice
(3)     Subsequent disease / injury b/c of impairment of health

D.    Damages
1.      Actual damages must be proven in the prima facies case.  Personal injury and property damages are recoverable.  However, nominal and punitive damages are not recoverable in negligence cases.
2.      Collateral Source Rule - benefits received from P’s own company or insurance are considered to be from a collateral source and are not deducted from D’s liability.
a. If the D’s insurance pays the bill, the collateral source rule does not apply.  They are credited against D’s liability.

E.     Negligence Defenses (discuss all three on the essays)
1.      Contributory Negligence - minority of states follow it.  If P is 1% contributorily negligent then the P is barred from recovery.
a. Exception is the Last Clear Chance Doctrine.  P can prevail if D had last clear chance to avoid the accident and failed to do so.
2.      Comparative Negligence - damages are apportioned based on respective degree of fault.  The negligent P can prevail but recoverable damages are reduced by the proportion of his fault.
a. Two Types:
(1) Modified JX - P’s negligent must not be equal to or greater than that of the D in order to prevail.
(2)     Pure JX - P who has been contributorily negligent can recover even if theri negligence exceeds the D’s.
3.      Assumption of Risk - where the P voluntarily exposes himself to a known risk of harm.  Applies a subjective standard where P knowingly exposes himself to harm.
a. Cf. with contributory negligence which uses an objective standard where P’s conduct falls below a reasonable person.
b.Assumption of risk often goes along with contributory negligence (i.e. deciding to ride along with a drunk driver).


III. Vicarious Liability - for both negligence and intentional torts.
A.    One person commits tortious act against another and another person is held liable for the act.  There are four or five situations frequently tested:


1.      Doctrine of Respondeat Superior - provides hat a master is vicariously liable for tortious acts of employee that occur within scope of the employment relationship.
a. Generally the employer is not held liable for intentional acts by the employee unless the employee conducts the act in furtherance of the employer’s business.
2.      Independent Contractor - person who hire independent contractor is not liable for the tortious acts of the contractor.
a. Exceptions:
(1)     Where independent contractor engage in ultra-hazardous activity.
(2)     Where independent contractor is engaged in non-delegable duty.
(3)     Negligent hiring.
3.      Joint Venture - each member is liable for tortious conduct of other members committed in scope and course of the venture.  A joint venture exists to carry out a small objective (more limited than a partnership).
4.      Automobile Owner / Driver Situation - owner is not vicariously liable for tortious conduct of somebody driving the autmobile.
a. Family Car Doctrine - owner liable for tortious conduct of immediate family.
b.Permissive Use Statutes - owner liable for any person driving tortiously with owner’s consent.
5.      Parents Not Vicarious Liable for Negligent or Tortious Conduct of their Child.  However, a parent may be liable for failure to properly supervise their child.


IV. Joint Tortfeasors (Multiple Defendant Issues)
A.    Joint and Several Liability - where two or more negligent acts combine to cause indivisible injury to P then each tortfeasor is held jointly and severally liable for that injury.  The same as if two or more Ds act in concert or by agreement to injure P.
B.     Contribution and Indemnity - distribute loss among tortfeasor by requiring each to pay his or her proportionate share. 
1.      Contribution is not allowed in favor of those who commit intentional torts.
2.      Indemnity shifts the loss from one tortfeasor who has been required to pay to another.  Available in two situations:
a. Vicarious Liability - often see indemnification in respondeat superior situations.
b.S/L  - where manufacturer is last at fault rather than the store which sold the product.


V.    Survival and Wrongful Death
A.    At CL tort actions abated at death of either tortfeasor or victim.  Survival Acts to permit cause of action to exist post-death.
B.     Exceptions include torts which invade an intangible personal interest (defamation, invasion of right to privacy).
C.     Wrongful Death Acts - are brought by next of kin or executor.  The suit is for pecuniary injury to those dependent on the decedent.




VI. Strict Liability
A. Three types:
1.      Abnormally Dangerous Activities - person carrying on the activity is liable even if the have taken r/b precautions and used utmost care.  Absolute liability.  These include:
a. Storage of Explosives
b.Blasting Operations
c. Crop Dusting with Chemicals
d.      Fumigation of a Building using Cyanide
e. Drilling Oil Wells in Thickly Settled Communities
f. Fireworks are not viewed as abnormally dangerous. (Use a negligent standard)
2.      Wild Animal - owners of wild animals are S/L even if the animal is declawed, etc..  If you are fleeing from a wild animal and trip you can recover for that injury b/c the injury is attributable to the wild animal. 
a. The recoverable harm is that caused by the dangerous propensity of that type of animal.  (Dress ruined by water splashed by shark not actionable).
b.Domestic Animals - owner not S/L unless the owner had scienter of the animal’s dangerous propensities.
3.      Products Liability - one who sells product in a defective condition, unr/bly dangerous to the user or consumer is S/L.  Everyone who handles the product in the stream of commerce is liable.
a. The following are not defenses
(1)  Misuse is not a defense if the misuse is foreseeable.
(2)  Disclaimers are not a defense.
(3)  Contributory Negligence is not a defense.
b.Failure to Warn or Give Adequate Directions May Result in S/L Even Though Product is Not Defective.
c. Commercial Sellers and Suppliers may sued under other tort actions including:
(1)     Negligent Manufacturing
(2)     Warranty Theories under UCC

VII.     Nuisance
A.    Two Types:
1.      Public Nuisance - an act or activity that inconveniences, obstructs, or damages a right common to the general public.  For private individual to recover in a public nuisance situation the private party must suffer a harm that is different in kind from the general public.  Usually involves serious interference to:
a. public health
b.public safety
c. public peace


2.      Private Nuisance - where the disturbance which substantially and unreasonable interferes with P’s use and enjoyment of their land.  Annoying to an average person in the community.
a. Don’t confuse with trespass which involves invasion of the property.  Nuisance is simply where the disturbance interference with use and enjoyment.  However, you may run into a situation where you have both nuisance and trespass.
B.     Remedies - three basic types for nuisance
1.      Money Damages - where adequate to compensate P for loss you use remedy at law.
2.      Injunctive Relief - where remedy at law is not adequate use equitable remedy such as the injunction.
a. Court will balance the hardships.  Rarely will an injunction be granted against an industrial nuisance b/c of the undue hardship on workers and business owners.  If you see industrial nuisance the answer will be money damages instead.
3.      Self-Help - permitted if D has notice and refuses to act.


VIII. Misrepresentation
A.    Intentional Misrepresentation
1.      Requires:
a. False representation made by D
b.Scienter that representation is false
c. Intent to induce P to act or refrain from acting on reliance upon the false statement
d.      Justifiable reliance upon the misrepresentation
e. Damages or pecuniary loss
2.      No duty to disclose material fact or opinion except where there is:
a. Fiduciary Relationship
b.Bank - Depositor Relationship
c. Active Concealment
d.      Incomplete Statements

IX. Defamation
A.    Two types:
1.      Libel - written defamation
2.      Slander - spoken defamation
B.     Prima Facie Case:
1.      Defamatory language on part of D.
2.      Defamatory statement must concern the P / identify P to r/b listener.
3.      Must be communicated to 3rd person other than person defamed.
4.      Must be damage to P’s reputation.
5.      Fault on the defendendant’s side.
C.     Defamatory language is language which adversely affects a person’s reputation.
1.      If the statement standing alone is defamatory it is defamatory on its face.  However, sometimes defamatory meaning is shown with extrinsic facts.


2.   Any living person may be defamed.  Defamation of the deceased is not actionable.
3.      Trade Libel - when dealing with a company and making a statement about a product.
D.    The burden is on the P to show that a r/b reader or listener would understand the defamatory meaning.
4.      Group defamation is actionable.
E.     Publication
1.      Every repetition is a separate publication and is actionable.
2.      Both primary and secondary publishers are liable.
F.      Damage
1.      Damage is presumed with libel and slander per se and there is no need to prove special  damages.
2.      Sliber Per Se includes:
a. Loathsome Disease
b.Chastity of a Woman
c. Improper Conduct in One’s Trade or Business
d.      False accusation of criminal offense or moral turpitude.
3.      Libel Per Se is where injury to P’s reputation is presumed by law.  Libel Per Quod is where the libel requires reference to extrinsic facts to establish defamatory content.
4.      Slander requires the P to prove special damages (pecuniary loss).
G.    Fault of defendant
1.      Public Officials - Malice is required for defamation actions by public officials.  Malice is reckless disregard of the truth or knowledge that the statement is false.
a. Public figures are those who are famous or you have injected themselves in a public controversy.
2.      Private Individuals - Negligence is required.  No need to prove malice but if there is malice you may be able to get punitive damages.

H.    Defenses to Defamation
1.      Truth
2.      Consent
3.      Absolute Privilege - statements in judicial, legislative, and executive proceedings
4.      Qualified Privilege - in public interest or interest of others.  Often tested with prospective employer situations calling for recommendations.  NO defamation if former employer r/b believed his statement.
5.      Retraction is NOT a Defense


X.    Invasion of Right to Privacy
A.    Four distinct causes of action
1.      Appropriation - where D appropriates P’s name or likeness for D’s own commercial advantage.
2.      False Light - where D places P in false light or gives attributes which P does not believe in.  D is espousing views not held by the D.


3.      Public Disclosure of Private Facts - must prove that the facts are private and the objection would be offensive to a r/b person.  Must not serve some public interest.
4.      Intrusion Upon Seclusion - must be an invasion on private affairs such as eavesdropping or peeping into windows.  Essay question might also want IIED and private nuisance discussions.


Add material on economic relatinship and misuse of legal procedures.