Torts on the NextGen Bar Exam
Torts is the subject where everyone thinks they're prepared and a surprising number of people lose points through sloppy execution. Negligence alone accounts for the majority of Torts questions, and the most common mistake isn't getting the law wrong — it's skipping elements. Candidates jump from breach straight to damages without addressing causation, or they assume duty exists without analyzing it. The exam awards points at every step of the framework. Skip a step, lose the points.
The negligence framework is the backbone: duty → breach → actual causation → proximate causation → damages. All five must be present. Duty is the element that requires the most nuanced analysis. The default is the "reasonable person" standard, but the exam loves special duty situations. Landowner liability varies by entrant status: invitees get the highest duty (inspect, discover, and warn of dangers), licensees get a duty to warn of known hidden dangers, trespassers generally get nothing — unless they're children, in which case the attractive nuisance doctrine creates a duty regardless.
Causation is where good answers become great answers. Actual causation (but-for test) and proximate causation (foreseeability) are separate elements that fail independently. But-for: would the harm have occurred without the defendant's breach? Proximate: was the harm a foreseeable result of the breach? The exam's favorite trick is the superseding intervening cause — an unforeseeable third-party act that breaks the causal chain. But here's the key: foreseeable intervening forces (rescuers, subsequent medical negligence, even foreseeable criminal acts) do NOT break the chain. Only truly unforeseeable events qualify.
Products liability tests three distinct defect types, and mixing them up is a common error. Manufacturing defect: the specific product deviated from the intended design (strict liability — no need to prove negligence). Design defect: the entire product line is flawed — tested under either the consumer expectations test or the risk-utility test depending on the jurisdiction. Warning defect: failure to warn of foreseeable risks that wouldn't be obvious to the ordinary user. Each type requires different analysis and different evidence. The exam will present a product injury and the question is usually "what type of defect?"
Defamation questions turn on one preliminary classification: is the plaintiff a public figure or a private figure? Public figures must prove actual malice — knowledge of falsity or reckless disregard for the truth (NY Times v. Sullivan). Private figures need only show negligence on matters of public concern. The exam loves to present borderline figures (a local politician, a teacher involved in a scandal) where the classification determines the entire outcome.
One pattern worth knowing: comparative fault has replaced contributory negligence in the vast majority of jurisdictions. Pure comparative fault lets a plaintiff recover even at 99% fault (recovery reduced by their percentage). Modified comparative fault bars recovery once the plaintiff hits 50% or 51% fault, depending on the jurisdiction. If the question doesn't specify, assume modified comparative at 50%.
Exam Tips
- Run all five negligence elements every time: duty → breach → actual causation → proximate causation → damages. Skipping causation is the single most common Torts mistake.
- Actual cause (but-for) and proximate cause (foreseeability) are SEPARATE elements. A but-for cause with an unforeseeable result = no proximate cause = no liability. Address both explicitly.
- Products liability: identify the defect type first (manufacturing, design, or warning). Each has a different standard of proof. Manufacturing = strict liability. Design = consumer expectations OR risk-utility. Warning = foreseeable risk + inadequate warning.
- Defamation: classify the plaintiff (public vs. private) before analyzing fault. Public figure = actual malice required. Private figure = negligence sufficient. This threshold determines the outcome.
- Comparative fault default: if the question doesn't specify the jurisdiction, assume modified comparative at 50%. Pure comparative (recovery at any fault level) is the minority rule.
Key Rules to Know
- Negligence: duty + breach (reasonable person) + actual cause (but-for) + proximate cause (foreseeable harm) + damages — all five required
- Superseding intervening cause: only UNFORESEEABLE third-party acts break the chain — foreseeable interventions (rescuers, negligent medical care) do not
- Products liability manufacturing defect: strict liability — product deviated from intended design, no negligence proof needed
- NY Times v. Sullivan: public figures must prove actual malice (knowledge of falsity OR reckless disregard for truth)
- Respondeat superior: employer liable for employee torts committed within the scope of employment — going-and-coming rule excludes commutes
Sample Practice Questions
A consumer purchased a new electric space heater from a retail store. The heater was designed with an automatic shut-off mechanism that would activate if the unit tipped over. However, during manufacturing, a batch of heaters—including the one purchased by the consumer—was assembled with a slightly undersized thermal sensor, causing the shut-off mechanism to fail intermittently. One evening, the consumer's cat knocked the heater over, and because the shut-off mechanism failed to activate, a fire started that damaged the consumer's apartment. The consumer filed a strict products liability action against the manufacturer. The manufacturer argued that the consumer was negligent in leaving the heater unattended near a pet and that the heater's design was state-of-the-art. Which of the following best describes the likely outcome?
- The consumer will likely prevail because the heater deviated from its intended design due to the undersized thermal sensor, establishing a manufacturing defect.
- The consumer will likely not prevail because leaving a space heater unattended near a pet constitutes contributory negligence that bars recovery in strict liability.
- The consumer will likely not prevail because the manufacturer's design incorporated an automatic shut-off mechanism, satisfying the reasonable alternative design requirement.
- The consumer will likely not prevail because the manufacturer must have been negligent in the manufacturing process for liability to attach, and negligence has not been shown.
Show answer
Correct: The consumer will likely prevail because the heater deviated from its intended design due to the undersized thermal sensor, establishing a manufacturing defect.
Under Restatement (Third) of Torts: Products Liability § 2(a), a manufacturing defect exists when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. Here, the undersized thermal sensor caused the heater to deviate from the manufacturer's own design specifications for the automatic shut-off feature. This is the classic manufacturing defect—the product as built differs from the product as designed. The manufacturer's 'state-of-the-art' defense is irrelevant because the design itself was adequate; the defect arose in manufacturing. The cat tipping the heater over was a foreseeable event, which is precisely why the shut-off mechanism was designed into the product.
A homeowner hired a licensed electrician to install new wiring in her garage. The electrician negligently left exposed wires near the garage ceiling. Two months later, a severe earthquake—the first in that region in over 80 years—shook the house and caused a heavy tool chest to fall from a shelf onto the exposed wires, creating a spark that ignited sawdust on the garage floor. The resulting fire destroyed the garage and the homeowner's car parked inside. The homeowner sued the electrician for negligence. The electrician moved for summary judgment, arguing that the earthquake was a superseding cause that broke the chain of proximate causation. How should the court rule on the electrician's motion?
- Grant the motion, because a rare earthquake is an unforeseeable act of nature that constitutes a superseding cause as a matter of law.
- Deny the motion, because the type of harm that occurred—fire from contact with exposed wires—was within the scope of the risk that made the electrician's conduct negligent.
- Grant the motion, because the electrician could not have reasonably foreseen that an earthquake would cause an object to strike the exposed wires.
- Deny the motion, because the electrician is strictly liable for all consequences flowing from the code violation of leaving exposed wires.
Show answer
Correct: Deny the motion, because the type of harm that occurred—fire from contact with exposed wires—was within the scope of the risk that made the electrician's conduct negligent.
Under the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 29, an actor is not liable for harm different from the harms whose risks made the actor's conduct tortious. Here, the very reason leaving exposed wires is negligent is the risk that something will contact them and cause a fire or electrocution. Although the earthquake was the specific mechanism that caused the tool chest to strike the wires, the type of harm (fire from contact with exposed wires) was squarely within the scope of the risk. Under § 34, a force of nature does not constitute a superseding cause when the resulting harm is the same general type of harm the risk of which made the actor's conduct negligent. See also Restatement (Second) of Torts § 442B (intervening force does not become superseding if the harm is within the scope of the original risk).
A landlord wanted to evict a tenant who was three months behind on rent. Rather than pursuing formal eviction proceedings, the landlord visited the tenant's apartment every day for six weeks, pounding on the door at 2:00 a.m., screaming profanities, and threatening to 'make her life a living hell until she crawled out.' The landlord knew the tenant had recently been hospitalized for severe anxiety disorder because the tenant had disclosed this information when requesting a payment extension. The tenant suffered a severe relapse of her anxiety disorder requiring rehospitalization. The tenant brought a claim for intentional infliction of emotional distress. The landlord moved for summary judgment, arguing that he was merely exercising his rights as a property owner to demand payment of rent owed. How should the court rule on the landlord's motion?
- Grant the motion, because the landlord had a legitimate economic interest in collecting rent owed to him.
- Deny the motion, because a reasonable jury could find that the landlord's conduct was extreme and outrageous and that he acted with knowledge of the tenant's special vulnerability.
- Grant the motion, because the tenant's pre-existing anxiety disorder means she cannot prove that the landlord's conduct was the proximate cause of her emotional distress.
- Deny the motion, but only if the tenant can show that the landlord intended to cause her hospitalization specifically.
Show answer
Correct: Deny the motion, because a reasonable jury could find that the landlord's conduct was extreme and outrageous and that he acted with knowledge of the tenant's special vulnerability.
Under the Restatement (Second) of Torts § 46, liability for IIED requires (1) extreme and outrageous conduct, (2) intent to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional distress actually suffered. Comment f to § 46 specifically provides that conduct may be deemed more outrageous when the defendant knows the plaintiff is particularly susceptible to emotional distress, as with a known mental condition. The landlord's sustained campaign of late-night harassment, profanity, and threats—combined with actual knowledge of the tenant's anxiety disorder—presents a triable issue on all elements. Summary judgment should be denied.
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