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

Sample questions for this subject will be available soon.

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