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
Dana was shopping at a department store when a security guard, Stevens, approached her and said, "Ma'am, I have reason to believe you've stolen merchandise. You need to come with me to the back office." Dana, who had not stolen anything, felt she had no choice but to comply. Stevens escorted her to a windowless office, closed the door, and told her to sit down while he reviewed surveillance footage. The door was not locked, and Stevens never told Dana she could not leave. However, Stevens stood between Dana and the door for 45 minutes while slowly reviewing footage on a monitor. When Stevens finally confirmed Dana had not taken anything, he said, "You're free to go." Dana later sued Stevens for false imprisonment. At trial, Stevens argued that Dana was never actually confined because the door was unlocked and he never explicitly told her she could not leave. How should the court rule?
- For Dana, because a reasonable person in her position would have believed she was not free to leave given the totality of the circumstances.
- For Stevens, because the door was unlocked and Dana had a reasonable means of escape available to her at all times.
- For Stevens, because he never explicitly told Dana she could not leave, and false imprisonment requires an express restriction on the plaintiff's freedom of movement.
- For Dana, but only if she can prove that Stevens used or threatened physical force to keep her in the room.
Show answer
Correct: For Dana, because a reasonable person in her position would have believed she was not free to leave given the totality of the circumstances.
Under the Restatement (Second) of Torts § 35, false imprisonment requires an act intending to confine another within boundaries fixed by the actor, where the confinement results and the other is conscious of it. Confinement need not involve physical barriers or explicit verbal restraints. Under § 36, confinement can be established by the assertion of legal authority (here, a security guard directing compliance) combined with physical positioning that blocks the only practical exit. A reasonable person in Dana's situation—told by an apparent authority figure that she must comply, placed in a windowless room, with the guard blocking the doorway—would not feel free to leave. The door being technically unlocked does not defeat the claim when the guard's positioning and assertion of authority created an apparent barrier to departure. See also Restatement (Second) of Torts § 40A (confinement by assertion of legal authority).
A supervisor at a large corporation discovered that one of his subordinates, Ellen, had filed a workers' compensation claim after injuring her back on the job. Over the next three weeks, the supervisor called Ellen into his office daily and berated her for being "weak and pathetic," threatened to "make her life a living hell" until she withdrew the claim, and on two occasions pounded the desk and screamed profanities inches from her face while she was visibly shaking and crying. Ellen did not withdraw the claim. She subsequently developed severe anxiety, insomnia, and was diagnosed with post-traumatic stress disorder by a psychiatrist. Ellen sues the supervisor for intentional infliction of emotional distress. The supervisor moves for summary judgment, arguing that workplace disagreements and harsh management tactics cannot constitute extreme and outrageous conduct. How should the court rule?
- Grant the motion, because a supervisor's harsh criticism of an employee, even if repeated, is within the bounds of acceptable workplace conduct and cannot be extreme and outrageous as a matter of law.
- Deny the motion, because the supervisor's sustained campaign of intimidation, abuse of authority, and threats aimed at coercing Ellen to abandon a legal right could be found by a reasonable jury to constitute extreme and outrageous conduct.
- Grant the motion, because Ellen cannot recover for IIED absent physical injury directly caused by the supervisor's conduct.
- Deny the motion, but only if Ellen can demonstrate that the supervisor specifically intended to cause her psychiatric harm rather than merely intended to pressure her to withdraw the claim.
Show answer
Correct: Deny the motion, because the supervisor's sustained campaign of intimidation, abuse of authority, and threats aimed at coercing Ellen to abandon a legal right could be found by a reasonable jury to constitute extreme and outrageous conduct.
Under 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. Comment e notes that conduct may be deemed outrageous when the defendant knows the plaintiff is particularly susceptible or the defendant abuses a position of authority. Comment f further explains that repeated conduct over time can be outrageous even if a single instance might not be. Here, the supervisor exploited his authority, targeted an injured and vulnerable employee, engaged in a sustained pattern of threats and intimidation to coerce abandonment of a legal right, and Ellen suffered clinically diagnosed severe distress. A reasonable jury could find all elements satisfied.
A prominent local business owner ran for city council. During the campaign, a rival candidate's supporter obtained the business owner's private medical records from a disgruntled former employee of the business owner's physician. The supporter then published the records on a public website, revealing that the business owner had been treated for clinical depression five years earlier. The business owner sued the supporter for public disclosure of private facts. At trial, the supporter argued that because the business owner was running for public office, the medical information was a matter of legitimate public concern. Which of the following best states the likely outcome?
- The business owner will prevail because medical records are always considered private facts regardless of the plaintiff's status.
- The supporter will prevail because all personal information about a political candidate is a matter of legitimate public concern.
- The business owner will likely prevail because a past, resolved mental health condition is not sufficiently connected to fitness for office to constitute a matter of legitimate public concern.
- The business owner will not prevail because by voluntarily entering the political arena, the business owner assumed the risk of all personal disclosures.
Show answer
Correct: The business owner will likely prevail because a past, resolved mental health condition is not sufficiently connected to fitness for office to constitute a matter of legitimate public concern.
Under Restatement (Second) of Torts § 652D, a public disclosure of private facts claim requires: (1) public disclosure, (2) of private facts, (3) that would be highly offensive to a reasonable person, and (4) that are not of legitimate concern to the public. While political candidates have a reduced expectation of privacy, the newsworthiness privilege is not unlimited. A treated and resolved mental health condition from five years ago has a tenuous connection to current fitness for office. Courts applying the 'nexus' test require that disclosed private information bear a logical and reasonable relationship to the matter of public concern. Here, the disclosure of outdated, resolved medical information would likely be found highly offensive to a reasonable person and insufficiently connected to the candidate's current qualifications. See also Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040 (1984) (analyzing the limits of the newsworthiness defense in the privacy context).
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