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The Torts section of the Bar Exam tests your ability to analyze and apply fundamental principles of civil wrongs and liabilities. Whether it’s tested on the MBE (Multistate Bar Exam) or as part of your state-specific essays, a clear understanding of key doctrines and common scenarios will help you succeed. Here's a breakdown of what you need to know:
1. Intentional Torts
Intentional torts occur when a person acts with intent to cause harm or offensive contact.
Key Intentional Torts:
Battery: Harmful or offensive contact to a person.
Assault: Reasonable apprehension of imminent harmful or offensive contact.
False Imprisonment: Intentional confinement without consent or legal justification.
Intentional Infliction of Emotional Distress (IIED): Extreme or outrageous conduct causing severe emotional distress.
Trespass to Land: Unauthorized entry onto someone else's land.
Trespass to Chattels: Interference with another’s personal property.
Conversion: Substantial interference with another’s property to the point of forced sale.
Defenses to Intentional Torts:
Consent
Self-defense, defense of others, and defense of property
Necessity (public or private)
2. Negligence
Negligence is the most tested concept in Torts. It requires duty, breach, causation, and damages.
Elements of Negligence:
Duty: Legal obligation to conform to a standard of care.
Standard: Reasonably Prudent Person under similar circumstances.
Special Duties: Professionals, children, landowners, and common carriers.
Breach: Failure to meet the standard of care (e.g., act or omission).
Causation:
Actual Cause: “But for” the defendant’s actions, harm wouldn’t occur.
Proximate Cause: Foreseeable harm resulting from the defendant’s conduct.
Damages: Plaintiff must prove actual injury or loss.
Defenses to Negligence:
Contributory Negligence: Plaintiff's negligence bars recovery (in a few jurisdictions).
Comparative Negligence: Plaintiff’s fault reduces recovery proportionately.
Assumption of Risk: Plaintiff voluntarily accepted a known risk.
3. Strict Liability
Strict liability imposes liability without proof of fault or negligence.
Three Common Areas:
Abnormally Dangerous Activities: Activities with a high risk of harm even when reasonable precautions are taken.
Example: Blasting, hazardous waste.
Wild Animals: Owners are strictly liable for harm caused by wild animals.
Products Liability: Liability for defective products.
Defects:
Manufacturing Defect: Product deviates from intended design.
Design Defect: Product is inherently dangerous due to flawed design.
Failure to Warn: Inadequate instructions or warnings.
4. Products Liability
Products liability can arise under strict liability, negligence, or warranty theories.
Strict Products Liability: Requires:
Defective Product
Commercial Seller
Product not altered after leaving defendant's control
Foreseeable Use by the plaintiff
Negligence: Similar to general negligence but focused on the product's manufacture or design.
Breach of Warranty:
Express Warranty: Affirmation of fact or promise about the product.
Implied Warranty of Merchantability: Product is fit for its ordinary purpose.
Implied Warranty of Fitness: Product is fit for a specific purpose known by the seller.
5. Defamation
Defamation involves false statements that harm a person’s reputation.
Elements:
Defamatory Statement: False statement of fact, not opinion.
Publication: Statement communicated to a third party.
Falsity: For public figures, plaintiff must prove the statement is false.
Harm: Harm to reputation (presumed in libel and certain slander cases).
Types of Defamation:
Libel: Written or recorded defamation.
Slander: Oral defamation.
Defenses:
Truth
Privilege (absolute or qualified)
Public concern: Constitutional protections under New York Times v. Sullivan require actual malice for public figures.
6. Privacy Torts
Intrusion Upon Seclusion: Invasion of privacy into someone’s private affairs.
Public Disclosure of Private Facts: Disclosure of private, embarrassing facts.
False Light: Presenting someone in a misleading, offensive manner.
Appropriation: Unauthorized use of someone’s name or likeness for commercial purposes.
7. Nuisance
Private Nuisance: Substantial and unreasonable interference with someone’s use and enjoyment of their land.
Public Nuisance: Unreasonable interference with a right common to the public (e.g., pollution).
8. Vicarious Liability
A party can be held liable for another’s tortious acts.
Respondeat Superior: Employers are liable for employees’ torts committed within the scope of employment.
Independent Contractors: Employers are generally not liable unless the work involves an inherently dangerous activity.
9. Wrongful Death and Survival Actions
Wrongful Death: Lawsuit brought by surviving family members for their losses.
Survival Action: Lawsuit on behalf of the decedent's estate for injuries sustained before death.
10. Key Strategies for Torts on the Bar Exam
Memorize Key Elements: Know the elements of negligence, intentional torts, and strict liability by heart.
Spot Multiple Issues: In essays, torts scenarios often involve multiple claims (e.g., battery, negligence, products liability). Address each claim thoroughly.
State Defenses: Always discuss potential defenses (e.g., consent, assumption of risk, comparative fault).
Use IRAC: Organize essays using Issue, Rule, Application, and Conclusion.
Practice MBE Questions: Torts is heavily tested on the MBE, so practice identifying legal issues quickly.
Final Thoughts
The Torts section requires a strong understanding of legal principles and a keen ability to analyze fact patterns. Focus on key doctrines like negligence, strict liability, and intentional torts, and be prepared to articulate defenses. Consistent practice and memorization will help you excel on exam day.
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