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 prominent city council member publicly advocates for defunding the local police department. A blogger who covers local politics writes a post stating, 'Council Member Davis accepted a $50,000 bribe from a real estate developer to vote in favor of rezoning the waterfront district.' The statement is entirely false, and the blogger made it based solely on an unverified rumor from an anonymous source, without conducting any additional investigation. Davis sues the blogger for defamation. At trial, the court instructs the jury that Davis must prove the blogger acted with 'actual malice.' Davis presents evidence that the blogger knew the anonymous source had previously provided unreliable information and that the blogger deliberately chose not to verify the claim despite having easy access to public voting and financial disclosure records. Which of the following best describes the likely outcome?
- Davis will likely prevail because the blogger's deliberate avoidance of verification, combined with awareness of the source's unreliability, constitutes sufficient evidence from which a jury could find actual malice.
- Davis will not prevail because failure to investigate, standing alone, never constitutes actual malice regardless of the circumstances.
- Davis will not prevail because as a public official who injected himself into a public controversy, he is a 'limited-purpose public figure' who can never recover for defamation.
- Davis will likely prevail because the statement constitutes libel per se, which eliminates the need to prove actual malice even for a public official.
Show answer
Correct: Davis will likely prevail because the blogger's deliberate avoidance of verification, combined with awareness of the source's unreliability, constitutes sufficient evidence from which a jury could find actual malice.
Under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a public official must prove 'actual malice'—knowledge of falsity or reckless disregard for whether a statement is true or false. In St. Amant v. Thompson, 390 U.S. 727 (1968), the Court explained that reckless disregard requires evidence that the defendant entertained serious doubts about the truth of the publication. Here, the blogger's knowledge that the anonymous source was previously unreliable, combined with the deliberate decision not to check readily available public records, provides sufficient circumstantial evidence from which a jury could infer that the blogger had serious doubts about the truth of the statement yet published it anyway. This crosses the line from mere negligent failure to investigate into reckless disregard. See also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) (purposeful avoidance of the truth is evidence of actual malice).
A landlord wanted to evict a tenant who had fallen two months behind on rent. Rather than pursue formal eviction proceedings, the landlord visited the tenant's apartment every day for three weeks. During each visit, the landlord pounded on the door, screamed profanities at the tenant in front of neighbors and the tenant's young children, threatened to throw the tenant's belongings into the street, and on one occasion brought a group of associates who surrounded the tenant in the hallway while the landlord berated her for being a 'worthless deadbeat.' The tenant, who had no history of unusual emotional sensitivity, began suffering severe anxiety, insomnia, and panic attacks, which were documented by her physician. The tenant sued the landlord for intentional infliction of emotional distress. Which of the following is the landlord's STRONGEST defense?
- The landlord had a legitimate financial interest in collecting the unpaid rent.
- The tenant's emotional distress resulted from her own financial difficulties, not the landlord's conduct.
- The landlord's conduct, while aggressive, does not rise to the level of extreme and outrageous behavior.
- The tenant did not suffer severe emotional distress because her symptoms were only temporary.
Show answer
Correct: The landlord's conduct, while aggressive, does not rise to the level of extreme and outrageous behavior.
Under the Restatement (Second) of Torts § 46, the conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community' (comment d). The 'extreme and outrageous' element is the most difficult to satisfy and is often a question for the court as gatekeeper. While the landlord's behavior was clearly aggressive and harassing, the landlord's strongest argument is that shouting, profanity, and threats of property removal during a rent dispute—though reprehensible—fall short of the extremely high threshold required. Courts have frequently dismissed IIED claims involving aggressive debt collection, insults, and threats as failing to meet this demanding standard. This is the landlord's best, though not necessarily winning, defense.
A woman was walking her dog on the sidewalk when a delivery truck driver negligently ran a red light and struck and killed her dog right in front of her. The woman was not in the zone of danger and suffered no physical impact, but she experienced severe emotional distress, including diagnosed PTSD and major depression, as a result of witnessing the incident. She filed a negligent infliction of emotional distress (NIED) claim against the truck driver under the bystander recovery theory established in Dillon v. Legg and its progeny. Which of the following is the strongest basis for the truck driver to move for summary judgment on the NIED claim?
- The woman was not within the zone of physical danger created by the truck driver's negligent conduct.
- The woman did not suffer any contemporaneous physical manifestation of her emotional distress at the time of the incident.
- The woman did not have a close familial or intimate relationship with the dog, as required for bystander recovery.
- The woman's emotional distress was not severe enough to be legally cognizable because it arose from witnessing property damage rather than personal injury.
Show answer
Correct: The woman did not have a close familial or intimate relationship with the dog, as required for bystander recovery.
Under the bystander recovery framework established in Dillon v. Legg, 68 Cal.2d 728 (1968), and refined in Thing v. La Chusa, 48 Cal.3d 644 (1989), a plaintiff must demonstrate a close relationship to the victim—specifically, the victim must be a 'closely related' person. Courts have consistently held that this requirement contemplates close family members (parent, child, spouse, sibling, domestic partner) and does not extend to pets. Because a dog is personal property rather than a person, the woman cannot satisfy the close-relationship element of bystander NIED. See, e.g., Kaufman v. Langhofer, 222 Ariz. 352 (Ariz. Ct. App. 2009) (rejecting NIED bystander claim for witnessing harm to a pet). This is the strongest basis for summary judgment.
Related Reading
Other Subjects
Practice hundreds more Torts questions in the app.
Download on the App Store