NextGen UBE Torts

Tort law addresses civil wrongs that cause harm. It includes negligence, intentional torts, strict liability, and defenses. It also covers causation, damages, and the special duties owed in professional or hazardous settings. The goal is to compensate those who are injured, deter unsafe behavior, and distribute risk fairly across society.

I. INTENTIONAL TORTS

A. Harms to the person
Intentional torts to the person (assault, battery, false imprisonment, IIED) all require a voluntary act, the requisite intent (including purpose or knowledge to a substantial certainty; sometimes transferred intent; and that minors/mentally ill can still form intent), causation, and harm (which may be dignitary, emotional, or physical, depending on the tort). Motive is irrelevant to liability, though it may affect damages. Each tort has its own specific elements layered on top of this basic structure.

1. Assault*
Assault is the intentional act that causes another to experience a reasonable apprehension of imminent harmful or offensive contact. The plaintiff must reasonably anticipate an immediate battery, but no actual physical contact is required. Words alone are usually insufficient without accompanying conduct that makes the threat feel imminent.

2. Battery*
Battery is the intentional infliction of a harmful or offensive bodily contact with the plaintiff’s person (or something closely connected, like clothing). The defendant need only intend the contact, not the injury, and the contact can be direct (a punch) or indirect (setting a trap). The standard of “offensive” is objective: whether it would offend a reasonable person’s sense of dignity.

3. False Imprisonment*
False imprisonment is the intentional confinement of a person within fixed boundaries set by the defendant, where the plaintiff is aware of the confinement or suffers actual harm from it. Confinement can be by physical barriers, threats of force, or unlawful assertion of authority, but generally not by moral pressure alone. There must be no reasonable means of escape that the plaintiff can use safely and is aware of.

4. Intentional Infliction of Emotional Distress (IIED) *
IIED requires extreme and outrageous conduct by the defendant, intentionally or recklessly causing the plaintiff severe emotional distress. The conduct must go beyond all bounds of decency (e.g., abuse of power, targeting a known vulnerability, or repeated harassment). Many courts still look for evidence of significant or severe distress, sometimes with physical manifestations.

B. Interference with Property Interests
Interference-with-property torts protect exclusive possession and use of land and chattels against intentional invasions. The same basic elements of act, intent, causation, and harm apply, but harm can be to the property itself or to possessory interests. The seriousness of the interference determines whether the claim is trespass to chattels or conversion.

1. Trespass to Land*
Trespass to land is the intentional entry onto land in another’s possession, or causing a physical invasion (such as throwing an object), without permission or legal privilege. The defendant need only intend the act of entering, not the trespass or wrongful purpose. Nominal damages are available without proof of actual harm, because the right to exclusive possession is itself protected.

2. Trespass to Chattels*
Trespass to chattels is an intentional interference with another’s tangible personal property that causes dispossession, impairment of condition, or harm to the owner’s use or interests. It covers lesser interferences, such as borrowing and damaging property, temporarily depriving use, where full market value is not appropriate. The remedy typically is repair cost, loss-of-use damages, or diminution in value.

3. Conversion*
Conversion is an intentional exercise of dominion or control over another’s chattel that is so serious it justifies requiring the defendant to pay the full market value of the property. Examples include destroying, selling, or significantly altering the item, or keeping it too long. The plaintiff can elect the remedy of “forced sale” (market value) or, sometimes, replevin (return of the item).

C. Defenses to Intentional Torts
Defenses to intentional torts justify or excuse conduct that would otherwise be tortious, often based on consent, self-protection, property protection, or public necessity. They typically require that the defendant’s belief in the circumstances be reasonable and the response proportionate. If a defense applies, liability may be completely avoided or, in some necessity cases, limited to payment of actual damages.

1. Consent*
Consent is a defense when the plaintiff, expressly or impliedly, agrees to the conduct, either actually (words, written, or clear conduct) or apparently (reasonable appearance of consent). Consent is limited in scope (e.g., medical procedures consented to), and conduct beyond that scope is not protected. Consent may be invalid if induced by fraud, duress, or if the plaintiff lacks capacity, though emergencies can imply consent (e.g., life-saving surgery on an unconscious patient).

2. Other Defenses to Intentional Torts
Other key defenses include self-defense (reasonable force to repel imminent harm), defense of others, and defense of property (non-deadly force only, with very narrow exceptions). The shopkeeper’s privilege allows brief, reasonable detention of suspected shoplifters. Public necessity justifies interference with property to prevent a public disaster (usually a complete defense), while private necessity allows entry or use to protect private interests but requires payment for actual damage. Parental discipline and lawful arrest privileges also protect certain intentional intrusions when reasonably carried out.

II. NEGLIGENCE

A. Duty of Care to Foreseeable and Unforeseeable Plaintiffs
Duty concerns who is owed a legal obligation of reasonable care and under what circumstances. Generally, a person owes a duty of reasonable care toward foreseeable plaintiffs in the “zone of danger” of their conduct. Some plaintiffs are considered unforeseeable as a matter of law (e.g., remote bystanders in Palsgraf-type scenarios), but modern trends often broaden foreseeability.

1. Nonfeasance and Affirmative Duties of Care*
Nonfeasance is the failure to act (i.e., doing nothing to help) which usually does not create liability, because there is no general duty to rescue or protect strangers. Exceptions arise when special relationships exist (parent–child, employer–employee, common carrier–passenger), when the defendant’s conduct created the risk (even non-negligently), or when the defendant voluntarily undertakes aid and thereby increases risk or the victim reasonably relies on that aid. Duties to control third parties may apply where relationships give the defendant power and knowledge (e.g., therapist with dangerous patient).

2. Duty of Owners and Occupiers of Land
Landowner duties historically depend on whether the entrant is a trespasser, licensee, or invitee, with the highest duty owed to invitees (inspect and make safe). Duties differ for natural versus artificial conditions, especially regarding adjacent land or public sidewalks. Modern approaches increasingly move toward a unified reasonable care standard for all lawful entrants, but the traditional categories still matter on the exam.

3. Duty to Avoid Unreasonable Risk of Causing Emotional Distress
Negligent infliction of emotional distress claims usually require the plaintiff to be in a zone of danger of physical harm and to suffer serious emotional distress, sometimes with physical manifestations. Bystander claims add requirements like close relationship, presence at the scene, and contemporaneous perception. Certain relationships (e.g., mishandling of corpses, erroneous death notifications) create special duties even absent physical danger.

4. Economic Loss
“Pure economic loss” refers to financial harm not tied to personal injury or property damage (e.g., lost profits due to a power outage at someone else’s facility). Courts generally decline to recognize a duty for pure economic loss in negligence cases, absent special relationships (like professionals providing information) or specific undertakings, to avoid open-ended liability.

B. Standard of Care
The standard of care is usually that of a reasonably prudent person under similar circumstances, an objective test that doesn’t adjust for a defendant’s individual mental weaknesses. Courts may, however, adjust for physical disabilities and specialized skills. Certain groups, including children, professionals, and those in emergencies, have modified or context-specific applications of the reasonable person standard.

1. Reasonably Prudent Person & Special Standards*
Children are held to the standard of a reasonable child of similar age, intelligence, and experience (except when engaged in adult activities, like driving). Professionals (doctors, lawyers, accountants) must meet the standard of a reasonably competent practitioner in their field, often established by expert testimony. In emergencies, the standard is that of a reasonable person facing the same sudden peril, provided the emergency is not of the defendant’s own making.

2. Rules of Conduct from Statutes; Relevance of Custom*
Negligence per se uses a statute to define the standard of care when the plaintiff is in the class the statute protects and suffers the type of harm it aims to prevent. Violation is often treated as evidence of negligence or a presumption of negligence, while compliance is evidence of due care but not conclusive. Custom can be used to show what is reasonable in an industry, but courts may find a custom itself negligent or reject it where safety requires more.

C. Direct and Circumstantial Evidence; Res Ipsa Loquitur*
Negligence can be proven directly (eyewitnesses, video) or indirectly through circumstantial evidence, from which a reasonable jury can infer breach and causation. The doctrine of res ipsa loquitur allows an inference of negligence where (1) the type of accident ordinarily does not occur without negligence, (2) it was caused by an instrumentality under the defendant’s exclusive control, and (3) the plaintiff did not contribute to the harm. Res ipsa usually shifts the burden of production, requiring the defendant to offer an explanation.

D. Actual Causation*
Actual causation (cause in fact) asks whether the injury would have occurred “but for” the defendant’s breach. In multiple-cause cases, courts sometimes use a substantial factor test or doctrines like alternative liability: where two negligent defendants were both possible causes but only one actually caused the harm, the burden may shift to them to show who is responsible.

E. Proximate Causation*
Proximate cause limits liability to consequences that are sufficiently foreseeable and within the scope of the risk created by the defendant’s conduct. Intervening acts, such as negligence of rescuers or medical malpractice, are often foreseeable and thus do not break the chain, while highly unusual or intentional criminal acts can be superseding causes that cut off liability, unless the original negligence specifically increased the risk of such acts (e.g., negligent security in high-crime areas).

F. Liability for Acts of Others
Generally, a person is not liable for the negligence of others absent a special doctrine. Parents are typically not vicariously liable for their children’s negligence, though statutes may impose limited responsibility for intentional acts. Nondelegable duties (such as duties imposed by statute or arising from inherently dangerous activities) mean a party cannot escape liability by hiring an independent contractor.

G. Pure and Modified Comparative Negligence; Secondary Implied Assumption of Risk*
Comparative negligence reduces a plaintiff’s recovery based on their percentage of fault. Pure comparative systems allow recovery even if the plaintiff is 90% at fault, while modified systems bar recovery if the plaintiff’s fault meets or exceeds a threshold (often 50% or 51%). Secondary implied assumption of risk, where a plaintiff knowingly encounters a risk created by the defendant’s negligence, is usually merged into comparative fault analysis rather than operating as a complete bar.

H. Express Assumption of Risk
Express assumption of risk occurs when the plaintiff explicitly agrees, usually in writing, to accept certain risks (e.g., waivers for recreational activities). If valid and clearly worded, such agreements can bar or limit recovery for ordinary negligence but generally cannot waive liability for gross negligence, reckless, or intentional conduct, or for interests strongly protected by public policy (e.g., essential services).

III. COMMON-LAW STRICT LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES
Strict liability applies to activities that create a high degree of risk of serious harm even when reasonable care is exercised, and that are not common in the community (e.g., blasting with explosives, storing large quantities of toxic chemicals). The plaintiff must suffer the type of harm that makes the activity abnormally dangerous. Comparative negligence may reduce recovery where the plaintiff’s fault contributed to the harm, but ordinary contributory negligence is not usually a complete defense unless the plaintiff knowingly and unreasonably confronted the risk.

IV. PRODUCTS LIABILITY*
Products liability addresses harm caused by defective products under theories of negligence, strict liability, and warranty. Defects include manufacturing defects (product differs from intended design), design defects (entire line is unreasonably dangerous), and failure to warn (inadequate instructions or warnings about foreseeable risks). Potential defendants include manufacturers, distributors, and retailers, and defenses can include misuse, alteration, assumption of risk, comparative negligence, or limitation of warranties.

V. NUISANCE AND DEFENSES

A. Private Nuisance*
Private nuisance is a substantial and unreasonable interference with the plaintiff’s use and enjoyment of land. The interference must be more than trivial and is evaluated in light of the locality (e.g., industrial vs. residential area). It differs from trespass (which protects possession and physical invasions) and public nuisance (which protects public rights).

B. Public Nuisance
Public nuisance is an unreasonable interference with a right common to the public, like blocking a public highway or polluting public waters. Typically, only public authorities may sue, but private individuals can sue if they suffer special harm different in kind from the general public’s harm.

VI. MISREPRESENTATION AND DEFENSES

A. Fraudulent Misrepresentation
Fraudulent misrepresentation involves a false statement of material fact made knowingly or with reckless disregard, intended to induce reliance, where the plaintiff justifiably relies and suffers damages. Remedies often include rescission, out-of-pocket or benefit-of-the-bargain damages, and sometimes punitive damages.

B. Negligent Misrepresentation
Negligent misrepresentation arises when a defendant in a business or professional context supplies false information without exercising reasonable care, leading to justifiable reliance and economic loss. It generally requires a special relationship or foreseeability of reliance in a commercial setting.

VII. DEFAMATION AND PRIVACY, AND DEFENSES
Defamation protects against false statements of fact that harm reputation, requiring publication to a third party and fault (at least negligence). Constitutional rules add requirements like “actual malice” for public officials and matters of public concern. Privacy torts, i.e., intrusion upon seclusion, public disclosure of private facts, appropriation of name or likeness, and false light, protect personal autonomy and dignity; defenses include truth (for defamation), consent, privileges (absolute and qualified), and newsworthiness.

VIII. DAMAGES

A. Apportionment of Responsibility Among Multiple Tortfeasors
When multiple defendants contribute to an indivisible injury, they may be jointly and severally liable, allowing the plaintiff to recover full damages from any one, who may seek contribution from others. Comparative fault regimes can apportion damages based on each tortfeasor’s percentage of responsibility, and some jurisdictions have modified or abolished joint and several liability.

B. Categories of Damages Recoverable in Tort Actions
Tort damages include compensatory damages, both special (economic) and general (non-economic), such as medical expenses, lost wages, pain and suffering, emotional distress, loss of enjoyment, and loss of consortium. Punitive damages punish especially egregious conduct, while nominal damages vindicate rights without proof of actual harm. The thin skull rule requires defendants to take plaintiffs as they find them, and plaintiffs must mitigate damages by acting reasonably to limit harm; attorney’s fees and statutory caps may also shape ultimate recovery.