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 city ordinance requires all restaurants to maintain illuminated exit signs above every emergency exit at all times during business hours. The stated purpose of the ordinance, as set forth in its preamble, is to ensure the safe evacuation of patrons in the event of a fire or other emergency. During lunch hour, one of the exit signs in a busy restaurant malfunctioned and went dark. Minutes later, a delivery driver who was dropping off supplies tripped over a mop bucket left near the unlit exit and broke his ankle. The delivery driver was not attempting to evacuate and was unaware the exit sign was unlit. He sues the restaurant owner for negligence, relying on the violation of the ordinance as negligence per se. How should the court rule on the negligence per se claim?
- The court should apply negligence per se because the restaurant violated the ordinance during business hours and the delivery driver was injured on the premises.
- The court should apply negligence per se because the delivery driver was a lawful visitor on the premises and therefore within the class of persons protected by the ordinance.
- The court should not apply negligence per se because the delivery driver's injury was not the type of harm the ordinance was designed to prevent.
- The court should not apply negligence per se because a city ordinance, unlike a state statute, cannot serve as the basis for a negligence per se claim.
Show answer
Correct: The court should not apply negligence per se because the delivery driver's injury was not the type of harm the ordinance was designed to prevent.
Under the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 14, a court will adopt a statutory standard as the standard of care in a negligence action only when the plaintiff can show (1) the plaintiff is within the class of persons the statute was designed to protect, and (2) the harm suffered is the type of harm the statute was designed to prevent. Here, the exit-sign ordinance was enacted to ensure safe evacuation during emergencies. The delivery driver's harm—tripping over a mop bucket during routine activities, not during an evacuation—falls outside the type of harm the ordinance was designed to prevent. The violation may still be relevant evidence of ordinary negligence, but the negligence per se doctrine does not apply.
A patient underwent a routine appendectomy at a hospital. When the patient awoke from general anesthesia, she discovered that she had suffered a severe burn on her left leg, far from the surgical site. The patient sued the hospital and the surgical team for negligence but could not identify which specific member of the surgical team caused the burn or present direct evidence of how it occurred. The defendants moved for summary judgment, arguing that the patient failed to present evidence of a specific negligent act. How should the court rule on the motion?
- Grant the motion, because the patient has the burden of proving the specific negligent act that caused her injury and has failed to do so.
- Deny the motion, because the doctrine of res ipsa loquitur permits an inference of negligence where the injury is of the type that ordinarily does not occur absent negligence and the instrumentality was within the defendants' exclusive control.
- Grant the motion, because res ipsa loquitur cannot apply when there are multiple defendants and the plaintiff cannot identify which one was negligent.
- Deny the motion, but only if the patient can present expert testimony establishing the applicable standard of care for appendectomies.
Show answer
Correct: Deny the motion, because the doctrine of res ipsa loquitur permits an inference of negligence where the injury is of the type that ordinarily does not occur absent negligence and the instrumentality was within the defendants' exclusive control.
Correct. Under the doctrine of res ipsa loquitur, a plaintiff may establish a prima facie case of negligence by showing: (1) the event is of a kind that ordinarily does not occur in the absence of negligence, (2) the instrumentality causing the injury was within the exclusive control of the defendant(s), and (3) the plaintiff did not contribute to the injury. Restatement (Second) of Torts § 328D. A burn on a patient's leg remote from the surgical site during surgery under general anesthesia is a classic res ipsa scenario—such injuries do not normally happen absent someone's negligence, the unconscious patient had no control over the situation, and the surgical team had exclusive control. This is consistent with the landmark case Ybarra v. Spangard, 25 Cal.2d 486 (1944), which applied res ipsa loquitur to allow a claim against multiple surgical team members where the unconscious patient could not identify which defendant was negligent.
A bill collector repeatedly called a debtor's home over a three-week period, averaging eight calls per day, including calls at 2:00 a.m. and 5:00 a.m. During several calls, the collector used profane language, called the debtor a 'worthless deadbeat,' and threatened to contact the debtor's employer and tell them the debtor was 'a thief who doesn't pay his bills.' The debtor, who had a known heart condition that the collector was unaware of, suffered a severe anxiety attack that required hospitalization. The debtor sued the bill collector for intentional infliction of emotional distress (IIED). Which of the following is the strongest argument in favor of the debtor's claim?
- The collector's conduct was extreme and outrageous because the pattern of harassment—including the frequency, timing, and nature of the calls—exceeded all bounds of decency tolerated by civilized society.
- The collector's lack of knowledge of the debtor's heart condition is irrelevant because IIED is a strict liability tort that does not require any knowledge of the plaintiff's vulnerabilities.
- The debtor's hospitalization conclusively establishes the severe emotional distress element because physical manifestation of distress automatically satisfies the severity requirement.
- The collector's threats to contact the debtor's employer independently satisfy all elements of IIED because any threat to harm a person's livelihood is per se outrageous.
Show answer
Correct: The collector's conduct was extreme and outrageous because the pattern of harassment—including the frequency, timing, and nature of the calls—exceeded all bounds of decency tolerated by civilized society.
Under the Restatement (Second) of Torts § 46, liability for IIED requires conduct that is '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 to § 46 specifically notes that the extreme and outrageous character of conduct may arise from an abuse of a position or relation with another that gives the defendant actual or apparent authority over the plaintiff, or power to affect the plaintiff's interests. Debt collectors occupy such a position. Additionally, comment f notes that the case is strengthened when the conduct is a continuous course of harassment. The combination of the frequency (eight calls per day), the unreasonable hours (2:00 a.m. and 5:00 a.m.), the profane and demeaning language, and the threats to defame the debtor to his employer, sustained over three weeks, collectively establishes a pattern that courts have consistently found to be extreme and outrageous.
Related Reading
Other Subjects
Practice hundreds more Torts questions in the app.
Download on the App Store