TORTS

PROFESSOR LESLIE KENDRICK

UNIVERSITY OF VIRGINIA SCHOOL OF LAW

CHAPTER 1: INTENTIONAL TORTS INVOLVING PHYSICAL INJURY

A. Generally
1. Three Elements—to prove an intentional tort, the plaintiff must prove:
o An act
_________________________;
o intent
_________________________; and
o causation
_________________________.
Note 1: An omission can be a tort, as well as an act.

2. Intent
o purpose
The actor acts with the _________________________ of causing the consequence; or
o The actor knows that the consequence is going to come about to a
substantial certainty
______________________________________________________
mentally incompetent
a. Children and ______________________________________ persons—can be held liable for
intentional torts if they act with the requisite intent
B. Battery
1. Definition
harmful
1) Defendant causes a _________________________ offensive
or _________________________
contact with the person of another; and
intent
2) Acts with the _____________ to cause that contact or the apprehension of that contact
a contact
2. Causation—act must result in _________________________ of a harmful or offensive nature
3. Harmful or Offensive Contact
injury
a. Harmful—causes an _________________________, pain, or illness
Example 1: Tom, Gatsby, and Nick are drinking mint juleps at a hotel. Tom
throws a punch at Gatsby, intending to hit him. If he hits him, that’s a battery.

b. Offensive
 A person of ordinary sensibilities would find the contact offensive.
Example 2: Spitting on somebody; groping somebody

 conscious
Victim need not be ___________________ of the touching in order for it to be offensive
Example 3: An operating room attendant inappropriately touches a patient
under anesthesia. This is a battery even though the patient is not aware of it
because it is objectively offensive.
  hypersensitive
If the victim is _________________________, and the defendant knows that about the
victim, the defendant may still be liable
c. Contact—the contact can be direct, but need not be
Example 4: Setting a bucket above a door, such that ice water falls on a
person’s head when the door is opened. Pulling a chair out from under
someone who’s about to sit down, so that they fall on the ground.
connected
d. With the person of another—includes anything ________________ to the plaintiff’s person
Example 5: Contact with the hat on your head, the book in your hand, the
bike you’re sitting on, the pet you have on a leash.

4. Intent
o contact
What has to be intended is the _________________________, not the offense
Example 6: Tom intentionally shakes Myrtle by the shoulders. It doesn’t
matter whether he intended to cause offense; if he intended the contact and the
contact is objectively offensive, he’s liable for battery.

a. Transferred intent
 applies
The doctrine of transferred intent _________________________ to battery.
 When the intent to commit one tort satisfies the required intent for a different tort; this
applies when a person commits:
• different
A ___________________ intentional tort against the same person that he intended
to harm;
• same
The _______________ against
intentional tort against a ____________________ person; or
• different
A ____________________ different
intentional tort against a ___________________ person.
Example 7: Tom throws a punch at Gatsby...

Different tort/same person: Tom misses Gatsby, but he puts him in reasonable
apprehension of imminent harm. Under the doctrine of transferred intent, the
intent to commit a battery satisfies the intent requirement for assault.

Same tort/different person: If the punch misses Gatsby and hits Nick, Tom
commits battery against Nick.

Different tort/different person: Tom intends to punch Gatsby, misses Gatsby,

misses Nick, but puts Nick in reasonable apprehension of being hit. The intent
to commit battery against Gatsby will transfer to the intentional tort of assault
against Nick.

5. Damages
o nominal
No proof of actual harm is required; the plaintiff can recover _________________ damages.
o The plaintiff can also recover damages from physical harm flowing from the battery.
 eggshell
“_________________________-plaintiff” rule—a defendant is liable for all harm that
flows from a battery, even if it is much worse than the defendant expected it to be.
o punitive
Many states allow _________________________ damages if the defendant acted:
 Outrageously; or
 malice
With _________________________.

2 | © 2023 Themis Bar Review, LLC | MBE Torts

 6. Consent Defense—there is no battery if there is express or implied consent.
Example 8: Tom and Nick enter a boxing contest. If Tom punches Nick and
injures him while boxing, Nick’s suit for battery will not succeed because Tom
can assert the defense of consent.

C. Assault
1. Definition—defendant engages in an act that:
o imminent
Causes reasonable apprehension of _________________________ harmful or offensive
bodily contact; and
o intends
The defendant _________________________ to cause apprehension of such contact or to
cause such contact itself
2. Bodily Contact—not required
3. Plaintiff’s Apprehension
o reasonable
Must be _________________________
o aware
Plaintiff must be _________________________ of the defendant’s action
Example 9: If a patient is touched by the medical attendant, that person
commits battery even though the patient was not aware of it.

Example 10: If someone pretends to hit you while you're unconscious, but they
don't make contact, there is no assault because assault requires awareness.

4. Imminent
o delay
Must be without significant _________________________
o Threats of future harm or hypothetical harm are not sufficient.
5. Mere Words
o Generally, “mere words do not constitute an assault.”
o But words can suffice in certain circumstances. If the defendant is able to carry out the
threat imminently and takes action designed to put the victim in a state of apprehension,
then there may be an assault.
Example 11: The defendant comes up behind the plaintiff in a dark alley and
says, “Your money or your life.” These words in this context can constitute an
assault.

6. Intent—The defendant must intend to cause either:

o An apprehension of imminent harmful or offensive contact; or
o The contact itself.
Example 12: Tom intends to punch Nick, but he misses. He does, however, put
Nick in reasonable apprehension of imminent harmful contact. Nick can make
out a claim of assault.

7. Damages
o actual
No proof of _________________________ damages is required; the plaintiff can recover
nominal damages.
o The plaintiff can also recover damages from physical harm flowing from the assault.
o punitive
In appropriate cases, _________________________ damages may be available.

MBE Torts | © 2023 Themis Bar Review, LLC | 3

CHAPTER 2: INTENTIONAL TORTS: IIED AND FALSE IMPRISONMENT
A. Intentional Infliction of Emotional Distress (IIED)
outrages
1. Definition—defendant intentionally or recklessly engages in extreme and __________________
conduct that causes the plaintiff severe emotional distress
2. Intent—The defendant must:
o Intend to cause severe emotional distress; or
o recklessness
Act with _________________________ as to the risk of causing severe emotional distress.
3. Extreme and Outrageous Conduct—Conduct that exceeds the possible limits of human decency,
intolerable
so as to be entirely _________________________ in a civilized society.
Example 13: As a practical joke, the defendant tells the plaintiff that his wife
has been killed in an accident.

o Courts are more likely to find conduct or language to be extreme and outrageous if:
 authority
The defendant is in a position of _________________________ or
influence
_________________________ over the plaintiff; or
 The plaintiff is a member of a group that has a heightened
sensitivity
_________________________ (such as young children or the elderly).
4. Public Figures—Constitutional Limitations
o false
Public figures and public officials must show that the words contain a _________________
malice
statement of fact that was made with “actual _________________________”
 Actual malice—with knowledge that the statement was false or with
reckless
_________________________ disregard of its potential falsity.
o The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct
public concern
is speech in the context of a matter of ___________________________________.
Example 14: The Supreme Court held that the father of a slain military officer
could not recover for IIED after a church picketed his son’s funeral because the
picketing was about a matter of public concern (U.S. military policy toward
homosexuality and other concerns of public import). (Snyder v. Phelps)

5. Conduct Toward Third Parties

If the defendant directs extreme and outrageous conduct toward one party and a different party
experiences severe emotional distress because of that conduct, the doctrine of transferred
intent may apply, but only in certain circumstances.
a. Related bystanders
An immediate family member of the victim who is present at the time of the conduct and
contemporaneously perceives the conduct may recover for IIED regardless of whether that
family member suffers bodily injury as a result of the distress.
Example 15: A defendant acted outrageously toward a young child and the
child’s mother is present at the time. If the mother experiences emotional
distress, she may be able to recover under the tort of IIED.

4 | © 2023 Themis Bar Review, LLC | MBE Torts

 b. Defendant’s purpose
If the defendant’s purpose in harming an individual is to cause severe emotional distress to
a third party, the third party can recover for IIED without showing that he was a close family
member of the harmed individual or that he contemporaneously perceived the conduct.
Editor's Note 1: Note that the traditional doctrine of transferred intent does
not apply to IIED when the defendant intended to commit a different
intentional tort (such as a battery) against a different victim.

6. Causation—defendant’s actions must be a cause in fact of the plaintiff’s harm

7. Damages—plaintiff must prove severe emotional distress beyond what a reasonable person
should endure
o Often, the outrageous nature of the conduct is evidence of the plaintiff’s distress.
o Hypersensitivity—if the plaintiff experiences an unreasonable level of emotional distress,
then the defendant is only liable if they knew of the plaintiff’s hypersensitivity.
o Physical injury is not required.
Exam Tip 1: Intentional infliction of emotional distress (IIED) is often tested
against negligent infliction of emotional distress (NIED).

B. False Imprisonment
1. Definition—three elements:
o confine
Defendant intends to ______________ restrain
or _____________ another within fixed boundaries;
o The actions (or inactions) directly or indirectly result in confinement; and
o conscious
Plaintiff is _________________________ harmed
of the confinement or _________________ by it
Example 16: Locking a person in a closet.

2. Confined Within Bounded Area

o Area can be large
o stationary
Area need not be _________________________
Example 17: The van may be moving, but if the person cannot leave the van,
that is confinement.

3. Methods of Confinement
o barriers
Use of physical ____________________, physical force, threats, invalid invocation of legal
authority
__________________, duress, or refusing to provide a safe means of escape (i.e., omission)
 May be false imprisonment when the defendant refused to perform a duty to help the
victim escape
Example 18: Someone is locked in a dressing room and the store clerk refuses
to unlock the dressing room.

o reasonable
Merchant’s privilege (Shopkeeper’s Privilege)—a merchant can, for a __________________
manner
time and in a reasonable _________________________, detain a suspected shoplifter.
4. Time of Confinement—immaterial to the tort

MBE Torts | © 2023 Themis Bar Review, LLC | 5

 5. Intent
o Defendant must act:
 purpose
With the _________________________ of confining the plaintiff; or
 Knowing
___________________ that the plaintiff’s confinement is substantially certain to result.
o Confinement due to defendant’s negligence—defendant will not be liable under the
intentional tort of false imprisonment
o applies
Transferred intent _________________________ to false imprisonment.
Example 19: If Gatsby intends to confine Tom but instead confines Nick, he is
liable to Nick for false imprisonment.

Example 20: If Gatsby intends to hit Nick with a log but instead blocks him into
a corner with it, such that he is confined, Gatsby is liable to Nick for false
imprisonment.
nominal
6. Damages—plaintiff can recover ____________ damages; actual damages are also compensable

CHAPTER 3: DEFENSES TO INTENTIONAL TORTS

A. Consent
words
1. Actual Consent (Express)—the plaintiff, by __________________ actions
or ______________________,
manifests the willingness to submit to the defendant’s conduct.
o scope
The defendant’s conduct may not exceed the ___________________ of the consent.
o valid
Consent by mistake—a _________________________ defense unless the defendant caused
the mistake or knew of it and took advantage of it
o essential
Consent by fraud—invalid if it goes to an _________________________ matter.
 If the fraud only goes to a collateral matter, consent is still a valid defense.
Example 21: The defendant suggests a boxing match where both opponents
wear red boxing shorts. The plaintiff is injured and sues the defendant, who
asserts consent as a defense. The plaintiff says the consent was by fraud
because the defendant wore his blue boxing shorts. This is a collateral matter
that would not prevent the defendant from raising consent as a defense.
silent
2. Presumed Consent (Implied)—the plaintiff is _________________ (or otherwise nonresponsive)
but in context, their silence and continued participation can reasonably be construed as consent
o Emergencies—it is fair to assume that someone in need of rescuing would allow a rescuer to
touch him absent explicit consent
o scope
Injuries arising from athletic contests—consent within the _________________ of the sport
 A defendant could be liable if the conduct is reckless
o Mutual consent to combat
3. Capacity—Lack of capacity may undermine the validity of consent (e.g., youth, incompetency,
intoxication).

6 | © 2023 Themis Bar Review, LLC | MBE Torts

B. Self-Defense
proportionate
1. Use of Reasonable Force—force that is _________________________ to defend against an
offensive contact or bodily harm (i.e., not excessive)
2. Duty to Retreat
o Traditionally, most courts required retreat before one could use deadly force.
o Most jurisdictions do not require retreat before using reasonable, proportionate force.
Note 2: These are called “stand your ground” laws.

3. Initial Aggressor—NOT permitted to claim self-defense unless the other party has responded to
nondeadly force with deadly force
4. Injuries to Bystanders—A person acting in self-defense is not liable for injury to bystanders as
accidental
long as the injury was ________________________ and the actor was not negligent toward the
bystander.
C. Defense of Others—may use reasonable force in defense of others, if that person would be entitled
to use self-defense
D. Defense of Property
reasonably
1. Reasonable Force—may be used if the person _________________________ believes it is
necessary to prevent tortious harm to the property
cannot
2. Deadly Force—_________________________ be used in defense of property
o A person may never use deadly mechanical devices to defend property (e.g., a spring gun).
3. Recapture of Chattels (Personal Property)
o personal
Reasonable force may be used to reclaim _________________________ property that has
been wrongfully taken, but only if you first request its return, unless that would be futile.
o peaceful
If the original taking was lawful (like a bailment) then only _________________________
means may be used.
4. Force to Regain Possession of Land
o Common law—reasonable force permitted
o Modern rule—use of force is no longer permitted; only legal process
E. Parental Discipline—parents may use reasonable force as necessary to discipline children.
F. Privilege of Arrest
1. Private Citizen
o felony
Permitted to use reasonable force to make an arrest in the case of a _________________ IF:
 The felony has actually been committed; and
 reasonable grounds
The arresting party has _______________________________ to suspect that the person
being arrested has committed the felony.
o is not
It _______________ a defense to make a reasonable mistake as to the identity of the felon.
o is not
It _______________ a defense to make a mistake as to whether the felony was actually
committed.

MBE Torts | © 2023 Themis Bar Review, LLC | 7

 2. Police
o Must reasonably believe that a felony has been committed and that the person arrested
committed it.
o An officer who makes a mistake as to whether a felony has been committed is
not subject
_________________________ to tort liability.
3. Misdemeanor
o An arrest by a police officer may only be made if the misdemeanor was committed in the
presence
officer’s _________________________.
o An arrest by a private person may only be made if there is a
beach of the peace
“_______________________________.”

CHAPTER 4: HARMS TO PERSONAL PROPERTY AND LAND

A. Trespass to Chattels
possess
1. Definition—an intentional interference with the plaintiff’s right to ________________ personal
property by:
o disposing
_________________________ the plaintiff of the chattel;
o using
_______________________ intermeddling
or _________________________ with the plaintiff’s chattel; or
o Damaging the chattel
2. Intent
o Only the intent to do the interfering act is necessary; need not intend to interfere
o mistake
_________________________ about the legality of the action is not a defense.
3. Damages
o actual
In cases of dispossession or damage—may recover _________________ damages, damages
nominal
resulting from the loss of use, _________________________ damages, or the cost of repair
o In cases of use or intermeddling—may only recover actual damages.
B. Conversion
1. Definition—intentionally committing an act depriving the plaintiff of possession of his chattel or
interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff entirely of
the use of the chattel.
2. Intent
o the act
Defendant must only intend to commit _________________________ that interferes.
o not
Mistake of law or fact _________________________ a defense.
full value
3. Damages—plaintiff can recover the chattel’s _____________________ at the time of conversion
4. Trespass to Chattels vs. Conversion—Courts consider the following factors:
o duration
The _________________________ and extent of the interference;
o Defendant’s intent to assert a right inconsistent with the rightful possessor;
o good faith
Defendant’s _________________________;
o Expense or inconvenience to the plaintiff; and
o Extent of the harm

8 | © 2023 Themis Bar Review, LLC | MBE Torts

 Note 3: The more extreme the interference, the more likely the court will find
conversion rather than trespass to chattels.

C. Trespass to Land
physical
1. Definition—defendant intentionally causes a ___________________ invasion of someone’s land
2. Intent
o Defendant need only have the intent to enter the land or cause the physical invasion
o Intent to commit a wrongful trespass is NOT required.
o fact
Mistake of _________________________ is not a defense.
3. Physical Invasion—includes causing objects to invade the land
4. Trespass vs. Nuisance
o always
Trespass—_______________ involves an actual physical invasion or intrusion upon the land
o Nuisance—may or may not involve a physical invasion or intrusion
possession
5. Rightful Plaintiff—anyone in ______________________ can bring an action, not just the owner.
actual
6. Damages—no proof of _________________________ damages is required.
7. Necessity as a Defense to Trespass
o Generally available to a person who enters onto someone else’s land or interferes with that
an injury
individual’s personal property to prevent _____________ severe harm
or other _____________________
a. Private necessity (partial or qualified privilege)
 nominal
The defendant is not liable for _________________________ damages.
 actual
The defendant is liable for _________________________ damages they caused.
 The landowner may not use force to exclude the person.
b. Public necessity
 Private property is intruded upon or destroyed when necessary to protect a large
public
number of people from a _________________________ calamity.
Example 22: A fire breaks out in town. Gatsby’s swimming pool can be utilized
and even damaged to protect the public from the fire.

 NOT liable for damages to the property

D. Nuisance
Exam Tip 2: The law of nuisance is tested frequently on the MBE.

1. Private Nuisance
unreasonably
a. Definition—an activity that substantially and _________________________ interferes with
use enjoyment
another’s _________________________ and _________________________ of land
Example 23: Loud noises or foul odors

b. Interference
 Courts are vague regarding what constitutes an unreasonable interference.
• reasonable
Must be annoying to an ordinary, _________________________ person

MBE Torts | © 2023 Themis Bar Review, LLC | 9

 • Someone hypersensitive may not have a cause of action for nuisance.
• Someone who is not actually bothered may still have a cause of action for nuisance
if it would bother an ordinary, reasonable person.
 utility
Courts will also balance the interference with the __________________ of the nuisance.
c. Not a nuisance
 view
Courts have refused to find the blocking of sunlight or the obstruction of ____________
to be nuisances.
 Exception: The spite fence or spite wall
• other purpose
If a person puts up a fence or wall with no _____________________ except to block
a neighbor’s view or sunlight, then courts will sometimes find that to be a nuisance.
d. Defenses to private nuisance
 regulations
Compliance with state or local administrative _________________________
• Evidence as to whether the activity is reasonable
• Not a complete defense
 “Coming to the nuisance”
• Courts are hesitant to find a nuisance if you moved somewhere knowing about that
conduct.
Example 24: If you knowingly locate your vacation home next to my cement
plant, your “coming to the nuisance” will be a factor in your nuisance suit
against me. It will not be dispositive.

• NOT a complete defense—one factor considered by the court

2. Public Nuisance
o public
An unreasonable interference with a right common to the __________________ as a whole
Example 25: Old examples: blocking a public highway or waterway.

Example 26: New examples: pollution, claims in tobacco litigation, claims in

opioid litigation.

o Public official—can bring an action on behalf of the public to abate the nuisance
Example 27: A state attorney general; a local district attorney

o Private individual—generally cannot bring a public nuisance claim unless the plaintiff
suffered special harm that is different from the general public

10 | © 2023 Themis Bar Review, LLC | MBE Torts

CHAPTER 5: NEGLIGENCE: OVERVIEW AND DUTY
A. Elements
Duty
1. _________________________—an obligation toward another party
Breach
2. _________________________—the failure to meet that obligation
Causation
3. _________________________—cause in fact (actual cause) and proximate cause (legal cause)
Damages
4. _________________________—the loss suffered
B. Duty
• legal
A __________ obligation to act a certain way (as opposed to a social or moral one); two aspects:
o Is there a duty or not? (yes or no)
o What is the nature of that duty—what is the standard of care?
 reasonable
In most cases, the standard is _________________________ care.
 There are some exceptional standards, such as utmost care for common carriers.
1. Is There a Duty? General Principles
o forseeably
A duty of care is generally owed to all persons who may _________________________ be
injured by the defendant’s course of conduct.
o affirmatively
Generally, there is no duty to act _________________________, even if the failure to act
appears to be unreasonable.
a. Duty and foreseeability
 In many jurisdictions, courts refer to foreseeability in deciding whether there is a duty.
 There is some overlap with the concept of proximate cause.
Exam Tip 3: If you see a problem and you think, “this is an unforeseeable
plaintiff,” look for an answer that says, “There’s no liability because this is an
unforeseeable plaintiff,” without worrying whether it’s a duty problem or a
proximate cause problem.

b. Scope of duty—foreseeability of harm

 Foreseeability of harm alone does not create a duty.
 Most courts emphasize the foreseeability of harm to the plaintiff when evaluating the
existence of a duty.
c. Scope of duty—foreseeability of plaintiff
 unforseeable
No liability to an _________________________ plaintiff.
 Majority view—Cardozo approach
• Considers whether the plaintiff is a member of the class of persons who might be
foreseeably harmed by the conduct.
 Minority view (the Restatement view)—Andrews approach
• Any time conduct could harm someone, there is a duty to everyone
• Whether this particular plaintiff was foreseeable is a proximate cause issue
Exam Tip 4: Remember, there is no liability toward an unforeseeable plaintiff
regardless of whether it is analyzed as duty or proximate cause.

MBE Torts | © 2023 Themis Bar Review, LLC | 11

 d. Categories of plaintiffs:
 Rescuers—a person who comes to the aid of another is a _________________________
forseeable
victim of the original negligent conduct.
 Cardozo: “Danger invites rescue.”
 Crime Victims—considered foreseeable plaintiffs in certain circumstances
Example 28: A train negligently takes a passenger past his stop and drops him
in a high-crime area. The railroad may be liable in tort if that passenger
becomes a victim of a crime.

2. Affirmative Duty to Act

In general, there is no affirmative duty to help others, but there are exceptions:
a. Assumption of duty—Voluntary Undertaking: a person who voluntarily aids or rescues
reasonable care
another has a duty of ___________________________________ in the performance of that
aid or rescue.
Example 29: At a party, the defendant sees the plaintiff hit his head and offers
to take him to the hospital. She then gets distracted by the party and forgets
about him in the car. If the plaintiff suffers further injury because of the failure
to follow through, the defendant could be liable for her failure to use reasonable
care in the rescue she undertook.
danger
b. Placing another in _________________________
Example 30: If Tom sees Nick drowning in a pool, he does not have a duty to
rescue him. However, if Tom is the one who knocked Nick into the water, then
he does have a duty.
control
c. By authority—a person with the ability and actual authority to _________________ another
has a duty to exercise reasonable control.
Example 31: A warden’s control over a prisoner; a parent’s control over a child

d. By relationship—defendant has a special relationship with the plaintiff

Example 32: Common carrier-passenger; innkeeper-guest

Note 4: This affirmative duty is not a Superman duty. It is a duty of

reasonable
_________________________ care to aid or assist those persons and prevent
reasonably foreseeable injuries.

12 | © 2023 Themis Bar Review, LLC | MBE Torts

CHAPTER 6: NEGLIGENCE: STANDARD OF CARE
A. Standard of Care
• objective
Reasonably prudent person under the circumstances—generally an _______________ standard
1. Mental and Emotional Characteristics
Objective standard—defendants with specific mental or emotional conditions are subject to the
same standard as everyone else
2. Physical Characteristics
Modified
_________________________ standard—particular physical characteristics are taken into
account; defendant is compared with a reasonably prudent person with like characteristics
Example 33: A blind defendant will be evaluated in comparison with a
reasonably prudent person who is blind.

3. Intoxication
Objective standard—held to the same standard as sober people unless the intoxication was
involuntary
_________________________
4. Children
o Modified
_________________________ age
standard—reasonable child of similar ________, intelligence,
and experience
o Adult activities—Children engaged in high-risk adult activities (e.g., driving a car) are held to
the objective standard for adults.
B. Standards of Care for Specific Situations
1. Common Carriers and Innkeepers
o Traditional rule: Utmost care—highest duty of care consistent with the practical operation
of the business
o Many courts today: liable only for ordinary negligence (not a higher standard)
o Majority of courts continue to hold common carriers to the higher standard of care, but
now hold innkeepers to the ordinary negligence standard.
2. Automobile Drivers
o grossly
Guests and friends in a car—drivers were traditionally liable only for ___________________
negligent, wanton, or willful misconduct (often under “guest statutes”).
o reasonable care
Most jurisdictions apply a general duty of _________________________.
3. Bailors and Bailees
o possession
Bailment—a bailee temporarily takes _________________________ of another’s (the
bailor’s) property.
Example 34: A driver leaves a car with a valet.

o Common law: Complicated rules regarding the standard of care in a bailment; for example:
 dangerous
Bailor must warn a gratuitous bailee of known _________________________ conditions
 If the bailor receives the sole benefit, then the bailee has a lesser duty.

MBE Torts | © 2023 Themis Bar Review, LLC | 13

  If the bailee receives a benefit, then he has a higher duty of care; even slight negligence
can result in liability.
4. Emergency Situations—standard of care is that of a reasonable person under the same
circumstances
_________________________.
C. Possessors of Land—relates to negligence in the maintenance of property
1. Two Approaches
o Traditional tripartite structure—one-half of jurisdictions continue to follow this approach
 The standard of care depends on the status of the entrant
o Modern (California) way—one-half of jurisdictions follow this approach
2. Traditional Approach
a. Invitees
 econmic
Someone who comes onto the land for a material or ______________________ purpose
• Public invitee—the land is held open to the public
Example 35: State fair

• Business visitor—for a purpose connected to business dealings with the possessor

of the land
Example 36: A customer in the owner’s business

 reasonable care
Land possessor owes a duty of _________________________ to inspect the property,
dangerous
discover unreasonably _________________________ conditions, and take reasonable
steps to protect the invitee
 Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
b. Licensees
 Enters the land with express or implied permission
Example 37: Social guests; allowing neighborhood children to walk across the
property on their way to school

 Land possessor has a duty to either make the property reasonably safe or warn
hidden
licensees of _________________________ dangers.
• inspect
No duty to _________________________ for dangers
• Must exercise reasonable care in conducting activities on the land
c. Trespassers
 Someone on the land without consent or privilege
 Duty: no duty to (undiscovered) trespassers
 willfu;
Exception: refrain from _________________________, wanton
_________________________,
intentional, or reckless misconduct
Example 38: Use of a spring gun or trap will result in liability

 Discovered or anticipated trespassers—duty to warn or protect from hidden dangers

14 | © 2023 Themis Bar Review, LLC | MBE Torts

  “Attractive nuisance” doctrine—may be liable for injuries to children trespassing on the
land if:
artificial
a) An _________________________ condition exists in a place where the owner
knows
_____________________ or has reason to know that children are likely to trespass;
b) The land possessor knows or has reason to know that the artificial condition poses
death
an unreasonable risk of ______________ bodily harm
or serious _________________________;
c) The children, because of their age, do not discover or cannot appreciate the danger;
d) The utility of maintaining the condition is slight compared to the risk of injury; and
e) The land possessor fails to exercise reasonable care
 “Flagrant trespassers”—in some jurisdictions, owed an even lesser duty of care
3. California way (minority and Third Restatement)
o Some states—reasonable standard of care under all the circumstances for all entrants
 The circumstances include the reasons the person is on the property
Example 39: The fact that the land entrant is trespassing is something the jury
may consider in deciding whether the land possessor exercised reasonable care.

o The Third Restatement § 52—reasonable care under the circumstances, except “flagrant
trespassers”
 The only duty to flagrant trespassers is to not act in an intentional, willful, or wanton
manner to cause physical harm.
Example 40: A burglar in a home would be a flagrant trespasser, but someone
injured while walking in a park at night after the park was closed would not be
a “flagrant” trespasser.

Note 5: This distinction has not been widely adopted by the courts.

4. Landlord and Tenant

o Landlord must:
 common
Maintain safe _________________________ areas;
 hidden
Warn of _________________ dangers (especially for premises that are leased for public
use); and
 Repair hazardous conditions
Note 6: As an occupier of land, the tenant continues to be liable for injuries
arising from conditions within the tenant’s control.

5. Off-Premises Victim
o natural
Generally, land possessor is not liable for injuries resulting from ______________ conditions
o unreasonable
Artificial conditions—must prevent _________________________ risk of harm to persons
not on the premises

MBE Torts | © 2023 Themis Bar Review, LLC | 15

CHAPTER 7: NEGLIGENCE: BREACH
A. Breach of Duty—Generally
• standard of care
Definition—a violation of the ____________________________________________
1. Traditional Approach—Reasonable person standard. Focuses on a common-sense approach of
what the reasonably prudent person would do under the circumstances.
2. Cost-Benefit Analysis—Hand Formula (B < PL) (Burden v. Probability of harm x severity of Loss)
Exam Tip 5: Do not get hung up on the difference here; it’s really just two ways
of getting to the same result.

B. Breach of Duty—Specific Rules

1. Custom—majority practice within an industry or profession
is admissable
a. Generally—evidence of custom _________________________________, but not dispositive
Example 41: Imagine that most tugboats have radios on board. This fact is
relevant and therefore admissible in a case where the jury must determine if it
was negligent for a tugboat not to have a radio. But it is NOT dispositive.

b. Professionals—lawyers, doctors, accountants, electricians

 dispositive
Custom is admissible and _________________________
• no breach
Compliance with custom = _________________________
• breach
Deviation from custom = _________________________
c. Physicians
 Traditional rule—physician in the “same or similar” locality
 Modern trend—national standard
 Informed consent—Patients must give informed consent:
• the risks
Doctors must explain _________________________ of medical procedures.
• Doctors are not required to inform the patient if:
o known
The risks are commonly _________________________;
o The patient is unconscious;
o The patient waives/refuses the information;
o The patient is incompetent; or
o harmed
The patient would be ____________________ by disclosure (e.g., it would cause
a heart attack).
2. Statutes—when a law or statute establishes a particular standard of care, violation of the law
negligence per se
constitutes a breach; constitute __________________________________________.
a. Elements:
duty
1) A criminal law or regulatory statute imposes a particular __________ for the protection
or benefit of others;
violated
2) Defendant _________________________ the statute;
class
3) Plaintiff must be in the ___________ of people intended to be protected by the statute;

16 | © 2023 Themis Bar Review, LLC | MBE Torts

 type of harm
4) The accident must be the _________________________ that the statute was intended
to protect against; and
caused
5) The harm was _________________________ by a violation of the statute
Example 42: Daisy is speeding and hits Myrtle with the car. The speeding law
imposes a duty for the protection of others; Daisy violated it; Myrtle is in the
intended class of protected persons; this is exactly the type of harm the statute
is meant to protect against; and let’s stipulate that the harm was caused by the
statutory violation—absent the speeding, Myrtle would not have been hit.
Negligence per se applies.

Example 43: A law states that sheep must be in pens on a ship. The law is
designed to protect livestock from contagious diseases. Some sheep on a ship
are not in pens, and they are washed overboard. The violation of the statute
does not constitute negligence per se, because the harm that occurred is not the
type that the statute was intended to protect against.

b. Violation by plaintiff—counts as comparative or contributory negligence

c. Compliance with a statute—generally does not constitute reasonable care; does not mean
the person was NOT negligent
Example 44: I could be observing the speed limit, but that does not mean I was
driving carefully. Maybe I was doing something else negligent, maybe I should
have been driving even more slowly given road conditions.

d. Defense—Excuse
 Defendant may show that complying with the statute would be even more dangerous
than violating the statute
 impossible
Compliance was _________________________ or an emergency justified violation of
the statute
 Incapacity (physical disability)
 Exercised reasonable care in trying to comply
 Vagueness
Example 45: A brother and sister are walking along the shoulder of the
highway with their backs to traffic. They are hit by a car. A statute says that
pedestrians on the shoulder should walk facing traffic, but they claim breaking
the statute was not negligent per se because the side of the road they were
supposed to walk on had very heavy traffic, and they were walking on the safer
side. An excuse may be available.

MBE Torts | © 2023 Themis Bar Review, LLC | 17

CHAPTER 8: NEGLIGENCE: BREACH—RES IPSA LOQUITUR
A. General Principle
In some cases, circumstantial evidence of negligence is sufficient evidence of negligence.
B. Traditional Elements:
occur
1) The accident was of a kind that does not ordinarily _____________ in the absence of negligence;
exclusive control
2) It was caused by an agent or instrumentality within the _________________________________
of the defendant; and
plaintiff
3) It was not due to any action on the part of the _________________________
Example 46: A barrel rolls out of a building and injures a passerby. A jury
could reasonably conclude that some type of negligence was the most likely
cause of that injury.

C. Modern Trend
• Third Restatement—applies the elements generously:
o ordinarily
The accident is a type of accident that _________________________ happens as a result of
negligence of a class of actors; and
o The defendant is a member of that class.
Note 7: Res ipsa loquitur just reminds the trier of fact that circumstantial
evidence can be sufficient to infer negligence.

D. Issues of Note
1. Medical malpractice
In cases in which medical personnel acted negligently to harm a patient, a small number of
jurisdictions shift the burden by holding ALL defendants jointly and severally liable unless they
can exonerate themselves.
2. Products Liability
exclusivity
Many courts ignore the _________________________ requirement when it is clear that the
defect originated upstream of the package’s wrapping.
3. Comparative-Fault Jurisdictions
Many comparative-fault jurisdictions (discussed later) loosely apply the third element (i.e., that
the harm was not caused by any action by the plaintiff).
E. Procedural Effect—in most jurisdictions
• Creates a permissible inference that allows the case to go to the jury
• Jury may infer negligence, but need not
Note 8: If the plaintiff lacks direct evidence of negligence, then the defendant
may move for a directed verdict. Res ipsa loquitor allows circumstantial
evidence to establish a prima facie case of negligence so that the issue can be
determined by the jury.

18 | © 2023 Themis Bar Review, LLC | MBE Torts

CHAPTER 9: NEGLIGENCE: CAUSATION—CAUSE IN FACT
A. Causation—has two components:
• Cause in fact, or actual cause
• Proximate cause, or legal cause
B. Cause in Fact
1. “But-For” Test—plaintiff must show that the injury would not have occurred “but for” the
defendant’s negligence
Exam Tip 6: This test is the most common way to determine actual causation.

Example 47: The brakes on a car are negligently repaired. The car is struck by
a meteorite, injuring the driver. The person who repaired the brakes is not
liable, because his negligence is not the but-for cause of the injury.

2. Multiple or Indeterminate Causes—the “but-for” test can be problematic in some cases

a. Common problematic circumstances:
 or indeterminate causes
Multiple _________________________—it cannot be said that any of the defendants’
tortious conduct necessarily was required to produce the harm;
Example 48: Several partygoers throw a piano off a roof, damaging a car. The
plaintiff will have difficulty showing that the conduct of any defendant was
necessary to cause the plaintiff’s harm.

 causes
Multiple possible _________________________—the plaintiff cannot prove which of
various possible causes actually caused the harm; or
 Loss of chance—patient is misdiagnosed because of the defendant’s negligence but
cannot show that the misdiagnosis actually caused the harm
b. “Substantial factor” test
 Used when there are conceptual problems with causation due to multiple causes
 Test: Was defendant’s tortious conduct a “substantial factor” in causing the harm?
 “Multiple sufficient causes” doctrine (Third Restatement)
Example 49: There are two separate fires, which merge and consume the
plaintiff’s home. Either fire alone could have destroyed the home, so the
plaintiff cannot show which fire was the actual cause. The plaintiff can show
that each fire was a substantial factor in causing the harm.

c. Alternative causation
 Plaintiff’s harm was caused by only one of a few defendants (usually two) and each was
negligent, and it cannot be determined which one caused the harm.
Example 50: Three friends were hunting, and two of them negligently fired
their guns toward the third friend. The third friend is hit by one of the bullets,
but he cannot show which gun it came from.

 shift
Courts will _________________________ the burden of proof to the defendants—will
impose joint and several liability on both unless one can show he did not cause the harm

MBE Torts | © 2023 Themis Bar Review, LLC | 19

 collectively
d. Concert of action—if two or more tortfeasors were acting together ____________________
and that causes the plaintiff’s harm, then all defendants will be jointly and severally liable.
3. Loss of Chance of Recovery (Medical Misdiagnosis)
o Under the traditional but-for analysis, a patient with less than a 50% chance of survival
could not recover for negligent misdiagnosis because they were likely to die anyway; the
doctor’s negligence was not a “but-for” cause of the patient’s death.
Example 51: A patient has a 20% chance of survival. The doctor negligently
misdiagnoses the patient’s condition, reducing the patient’s chance of survival
even further. The patient then dies.

o Loss of chance doctrine—if a physician negligently reduces the plaintiff’s chance of survival,
then that plaintiff can recover for the lost chance of recovery.
 Plaintiffs cannot recover full damages; but can recover the portion that represents their
lost chance of survival
Example 52: Plaintiff was misdiagnosed by defendant doctor. The plaintiff’s
chances of survival were 40% without the negligent misdiagnosis and 25% after
the misdiagnosis. Plaintiff’s total damages were $1,000,000.
1,000,000
Patient’s lost chance = _________________________________
150,000
Defendant’s liability = $__________________________________

CHAPTER 10: NEGLIGENCE: CAUSATION—PROXIMATE CAUSE (LEGAL CAUSE)

Note 9: Recall that there is no liability to an unforeseeable plaintiff whether
that rule is characterized as a duty issue or a proximate cause issue.

A. Scope of Liability
• risks
Person is liable for the kinds of _________________________ that made her conduct negligent.
• The issue is whether the injury that occurred was within the scope of the defendant’s breach.
Example 53: A speeding trolley is hit by a falling tree. Although speeding is
negligent, being hit by a tree is not within the scope of liability—it is not one of
the risks that makes speeding negligent in the first place.

Example 54: An adult gives a handgun to a child. The child drops the gun on
his foot, injuring himself. While it is foreseeable that a child might drop a heavy
object, the heaviness of the gun is not what makes giving a gun to a child
negligent in the first place. This injury could be outside the scope of liability.

Example 55: The defendant fails to put a barricade around an open shaft at a
construction site. Barricades are supposed to be used to protect people from
falling down the shaft, but in this case a radiator falls down the shaft and
injures a person at the bottom. The judge would have to decide if this particular
harm was within the scope of what made the conduct negligent in the first
place. (Cardozo said yes, this is within the scope of liability.)

B. Foreseeability of Harm
Exam Tip 7: When asking whether a particular consequence of negligence is
too remote, ask “is this what made the conduct negligent to begin with?”

20 | © 2023 Themis Bar Review, LLC | MBE Torts

 • Majority rule is no liability for an unforeseeable type of harm
Example 56: Daisy speeds down a street and causes a pedestrian to jump out
of the way and sprain an ankle. Daisy is likely liable.

Example 57: If the sound of the car reminds a passerby of a car the passerby
used to own, and the sound makes the passerby want to go for a drive, and the
passerby is later in a car accident while driving, then Daisy is not liable.

C. Intervening vs. Superseding Causes

• Courts used to distinguish between “intervening” causes, which do not break the chain of
causation, and “superseding” causes, which do. Some courts still make this distinction.
• The real issue is whether the injury is within the scope of what made the conduct negligent in
the first place.
• Third-party criminal acts may or may not break the chain of causation.
Example 58: A train negligently takes a passenger past his stop and drops him
in a high-crime area. The passenger is assaulted on the way home. The
railroad may be liable in tort. The assault is an intervening criminal act, but
that does not relieve the railroad of liability. It is entirely foreseeable that such
an assault would happen—that’s exactly the kind of risk that made the
railroad’s behavior negligent in the first place. (Intervening)

Example 59: Daisy speeds down a street and causes a pedestrian to jump out
of the way. While standing there on the sidewalk, the person is mugged by a
third party. Daisy is not liable: it is not foreseeable that speeding will cause
someone to get mugged. It’s not one of the risks that made this conduct
negligent in the first place. (Superseding)

D. Extent of Damages
• The defendant is liable for the full extent of the plaintiff’s injuries, even if the extent is unusual
or unforeseeable (Eggshell plaintiff rule).
Example 60: Jordan is not watching where she is going and rear ends another
car. Most people would not experience major injury, but the driver of the other
car has a bone condition that leads her to have a serious injury. Jordan is liable
for the full extent of the damages, even if she could not foresee them.

Exam Tip 8: The TYPE of damages must be foreseeable, but not the EXTENT.

CHAPTER 11: NEGLIGENCE: DAMAGES

A. Compensatory Damages
1. Actual (Compensatory) Damages
o Purpose is to make the plaintiff whole again emotional
o Can include costs of physical injuries and also _________________________ damages (i.e.,
“parasitic damages”)
2. Mitigation of Damages
o Plaintiff must take reasonable steps to mitigate damages
o Can be considered a duty, but it’s more of a limitation on recovery

MBE Torts | © 2023 Themis Bar Review, LLC | 21

 3. Personal Injury—Categories of Compensatory Damages
o Medical
_________________________ expenses, both past and future
o earning capacity
Lost income and reduced __________________________________
o Pain and suffering, both past and future
4. Property Damage
o market value
Generally, plaintiff may recover the difference in the _________________________ of the
property before and after the injury
o reapir
May allow cost of _________________________ replacement
or _________________________ value as
an alternative measure of damages
5. Collateral-Source Rule
a. Traditional rule
 Benefits or payments to the plaintiff from outside sources are not credited against the
liability of any tortfeasor.
Example 61: The plaintiff’s healthcare costs were covered by the plaintiff’s
health insurance. Under the collateral source rule, the defendant cannot claim
that his damages should be reduced by that amount.

Note 10:Typical insurance plans include a provision that any amounts recovered
by the plaintiff would first reimburse the insurance company for payments
made to cover the plaintiff’s expenses.

 Evidence of such payments is not admissible at trial.

b. Modern trend
Most states have passed statutes that eliminate or substantially modify the collateral source
rule to avoid double recovery.
B. Punitive Damages
• punish
Purpose is to _________________________ deter
and _________________ future conduct
• willfully
May be available if the defendant acted _____________________, wantonly
_____________________,
malice
recklessly, or with _________________________, or if an inherently malicious tort is involved
• statute
Availability may be limited by _________________________
• The U.S. Supreme Court has held that as a matter of due process punitive damages must be
within a single-digit ratio of any compensatory damages.
Example 62: A punitive damages award that is ten times higher than the
compensatory award would be constitutionally suspect. A punitive award that
is nine times the amount of the compensatory award would not raise as much
of a red flag because it stays within the single-digit ratio.

22 | © 2023 Themis Bar Review, LLC | MBE Torts

CHAPTER 12: NEGLIGENCE: SPECIAL RULES OF LIABILITY
A. Negligent Infliction of Emotional Distress (NIED)—Pure Emotional Harm
• At common law, plaintiffs could not recover for NIED absent a physical injury.
• Now, plaintiffs can recover for NIED in specific circumstances:
1. Zone of Danger—a plaintiff can recover for NIED if:
o The plaintiff was within the “zone of danger” of the threatened physical impact; and
o caused
The threat of physical impact _________________________ emotional distress.
Example 63: A pedestrian is on the sidewalk and a car is being driven right at
them. The pedestrian is in the zone of danger of this negligent car, but the car
does not actually hit the pedestrian. If the pedestrian experiences emotional
distress from this event, the pedestrian can recover for NIED.

Exam Tip 9: Think of this as analogous to assault (apprehension of contact).

2. Bystander Recovery—a bystander can recover for NIED if the bystander:

o closely related
Is ____________________________________ to the person injured by the defendant;
o Was present at the scene of the injury; and
o observed
Personally _________________________ the injury.
o These are proximity requirements—relational, geographic, and temporal
3. Special Relationship
o corpse
Negligent mishandling of a _________________________
o Negligent medical information (e.g., a negligent misdiagnosis)
4. Physical Manifestation—most jurisdictions require some physical manifestation of distress
(such as nausea, insomnia, or miscarriage).
B. Pure Economic Loss
• A plaintiff who suffers only economic loss without any related personal injury or property
damage cannot recover in negligence.
Example 64: Someone negligently damages a road. A business owner loses
business due to the damage to the road. The owner cannot recover for that
economic loss because the business owner has not suffered any personal injury
or property damage.

• If the plaintiff can prove personal injury or property damage, then the plaintiff can recover those
damages and also economic damages.
C. Loss of Consortium
• Allows recovery for loss arising from injury to a family member
• Family members (typically a spouse) can claim loss of consortium or companionship.
D. Wrongful Death and Survival Actions
1. Survival Action
o Brought by a representative of the decedent’s estate on behalf of the decedent for claims
that the decedent would have had at the time of the decedent’s death
o Claims include damages resulting from personal injury or property damage

MBE Torts | © 2023 Themis Bar Review, LLC | 23

 2. Wrongful Death
o spouse
Brought by the decedent’s _________________________ or representative to recover
losses suffered by the spouse or representative as a result of the decedent’s death
o Can include loss of economic support and loss of consortium
E. “Wrongful Life” and “Wrongful Birth” Claims
1. Wrongful Life
o a child
Claim by _________________________ for defendant’s negligent failure to properly
perform a contraceptive procedure or diagnose a congenital defect
o A few states permit a “wrongful life” action, but they limit the child’s recovery to special
damages attributable to the disability.
2. Wrongful Birth
o parents
Claim by _________________________ for defendant’s negligent failure to properly
perform a contraceptive procedure or diagnose a congenital defect
o Many states do permit recovery for the medical expenses of labor as well as for pain and
suffering.
o In the case of a child with a disability, may be able to recover damages for the additional
medical expenses of caring for that child, and, in some states, may recover for emotional
distress as well

CHAPTER 13: NEGLIGENCE: VICARIOUS LIABILITY AND IMMUNITIES

A. Vicarious Liability
• When one person is held liable for another person’s negligence
Example 65: An employer being held liable for an employee’s torts

• Joint and Several Liability—The responsible party can still be held liable for his negligence, but
the employer is also liable.
o Sometimes the individual employee cannot pay or cannot be identified; the employer would
still be liable under joint and several liability.
• Indemnification—The party held vicariously liable may seek indemnification from the party who
was directly responsible.
1. Respondeat Superior
o The employer is held vicariously liable for the negligence of an employee, if it occurred
scope of employment
within the ____________________________________________________.
o Distinction: Employer’s own negligence v. vicarious liability for an employee’s conduct
 Direct negligence—the employer is liable for the employer’s own negligence.
 Vicarious liability—the employer is liable for the employee’s actions.
Example 66: A pizza company hires bad drivers or provides them with alcohol
before their shift. The employer’s actions are negligent in their own right.

Example 67: The pizza company is as careful as possible in the hiring, training,
and supervising of its employees, yet one employee decides, on his own,

24 | © 2023 Themis Bar Review, LLC | MBE Torts

 contrary to instructions, and without the employer’s knowledge, to consume
alcohol while delivering pizzas, and he negligently gets into an accident.
Vicarious liability applies.
are not liable
a. Intentional torts—generally, employers ______________________ for the intentional torts
of employees
 Exception: when the employee’s conduct is within the scope of employment
Example 68: A bar bouncer beats up a customer thinking he is serving the
employer’s interests.

b. Scope of employment—frolic and detour

 Minor
Detour (______________ deviation from the scope of employment)—the employer
is
_______________ liable.
 Major
Frolic (______________ deviation from the scope of employment)—the employer
not
_______________ liable.
Example 69: A pizza driver stops by the cleaners to get his dry cleaning while
delivering pizzas and injures someone in the parking lot. This could be
considered a detour.

Example 70: On the other hand, a pizza driver who skips out on work for a
couple hours to have a picnic is likely to be on a frolic.

2. Independent Contractors’ Torts

o not liable
Generally, employers are ______________ for torts committed by independent contractors.
Example 71: You hire someone to paint your house while you are on vacation.
The painter is negligent in the process and injures someone. You are not liable,
because the painter is an independent contractor.

a. Independent contractor v. employee

control
If the employer retains a right of _________________________ over the way the employee
does the work, then the courts will treat that person as an employee.
b. Vicarious liability for an independent contractor’s torts
 Non-delegable duties:
• dangerous
Inherently _________________________ activities;
• public
Duties to the _________________________ or specific plaintiffs for certain types of
work, such as construction work by a roadway;
• Shopkeepers have a duty to keep the premises safe for the public
 Apparent agency doctrine
Note 11:This is a general Agency concept, not just a Torts concept.

• An independent contractor (IC) will be treated as an employee if:

o The injured person accepted the IC’s services based on a
reasonable belief
_________________________________________________ that the IC was an
employee, based on manifestations from the putative employer; and

MBE Torts | © 2023 Themis Bar Review, LLC | 25

 o The IC’s negligence is a factual cause of harm to one who receives the services,
and such harm is within the scope of liability.
Example 72: You accept medical services from a doctor wearing a name tag
with the hospital logo. If the doctor commits malpractice, you may be able to
use apparent agency doctrine to establish the hospital’s vicarious liability, even
if the hospital says the doctor was an IC, if you can show you reasonably relied
on the hospital’s representation, as manifested in the name tag.

3. Business Partners—can be liable for the torts of other business partners committed within
scope
the_________________________ purpose
of the business’s _________________________.
4. Automobile Owners
directly
a. Negligent entrustment—an owner can be _______________________ liable for negligently
entrusting a vehicle (or any other dangerous object) to someone who is not in the position
to exercise reasonable care.
b. Family-purpose doctrine—the owner of an automobile may be vicariously liable for the
any family member
tortious acts of ____________________________________ driving the car with permission.
c. Owner liability statutes—the owner of an automobile may be vicariously liable for the
anyone
tortious acts of _________________________ driving the car with permission.
5. Parents and Children
not
a. General rule—parents generally _________ vicariously liable for their minor children’s torts.
b. Negligence of parents—parents can be liable for their own negligence with respect to their
children’s conduct (e.g., negligent supervision)
6. “Dram Shop” Liability
a. Commercial establishments
 Holds bartenders, bar owners, and servers liable for injuries caused when people drink
too much alcohol and injure third parties
 minors
In many states, liability is limited to serving _________________________ or people
visibly
who are _________________________ intoxicated
b. Social hosts (some states)
 Liability for serving alcohol to a guest who is then injured or injures another
 Statutes vary and often limit liability to serving alcohol to a minor
Note 12: A claim for vicarious liability does not relieve the actual tortfeasor
from being held directly liable.

B. Immunities
1. Federal and State Governments
o completely immune
Traditionally, state and federal governments were ___________________ from tort liability.
o Immunity has been waived by statutes.
a. Federal Tort Claims Act
 waives
Expressly _________________________ immunity and allows the federal government
to be sued for certain kinds of torts

26 | © 2023 Themis Bar Review, LLC | MBE Torts

  There are exceptions to this waiver of immunity (i.e., situations in which the federal
discretionary
government maintains immunity), including _________________________ functions,
traditional governmental activities, and certain enumerated torts.
b. State governments and municipalities
 Most states have waived immunity to some extent.
 Municipalities are generally governed by the state tort claims statute.
 Governmental v. proprietary functions
• applies
Governmental functions (e.g., police, court system)—immunity ________________
• Proprietary functions (often performed by a private company, e.g., utilities, parking
has been waived
lots)—immunity _________________________
c. Government officials
 Discretionary
_________________________ functions—immunity applies
 Ministerial
_________________________ functions—no immunity
 Westfall Act—precludes any personal liability on the part of a federal employee under
state tort law.
2. Intra-Family Immunities—largely eliminated; a family member can be sued for negligently
injuring another family member
o Core parenting activities—immunity still applies
Eliminated
3. Charitable Immunity—_______________ in most states, though some states still limit recovery

CHAPTER 14: NEGLIGENCE: SHARING LIABILITY AMONG MULTIPLE DEFENDANTS

A. Joint and Several Liability
• Two or more defendants are each liable for a single and indivisible harm to the plaintiff; each
entire harm
defendant is subject to liability to the plaintiff for _____________________________________.
• Plaintiff can recover all of the damages from any negligent party.
Note 13:The plaintiff cannot recover more than the total damages (i.e., no
double recovery).

• Applications:
o Two or more tortfeasors;
o concert
Tortfeasors acting in _________________________;
o Alternative liability;
o Res ipsa loquitur used against multiple defendants;
o employer
Vicarious liability—both _____________________ employee
and _____________________ are liable
Example 73: Defendant 1 and Defendant 2 have been found jointly and
severally liable for a judgment. However, Defendant 2 cannot be found to
enforce the judgment. Defendant 1 will be liable for the entire amount of
damages.

Example 74: Contribution: Following the above example, Defendant 1 pays the
entire judgment to the plaintiff. Defendant 1 now has a right of contribution
against Defendant 2 for paying more than his share of the total liability.

MBE Torts | © 2023 Themis Bar Review, LLC | 27

 Example 75: Indemnification: Defendant 1 is an employer and Defendant 2 is
the negligent employee. Defendant 1 pays the full amount of the judgment and
seeks full reimbursement for payment pursuant to the employee’s duty of
indemnification.

• Multiple defendants can be held jointly and severally liable, even if a jury apportions each
defendant a different percentage of fault.
o Some jurisdictions limit a defendant’s joint liability if he is less than 10% at fault. The
defendant will be liable only for his share of fault.

CHAPTER 15: NEGLIGENCE: DEFENSES

A. Contributory Negligence
1. Traditional Rule
o precluded
If the plaintiff was negligent in some way, that negligence completely __________________
the plaintiff’s recovery.
Example 76: Jordan and Daisy are both driving negligently. Owing to both
their negligence, they hit each other. Jordan tries to sue Daisy for negligently
causing her injuries, but Daisy has a defense of contributory negligence that is a
complete bar to recovery.

o This is the old common-law rule and is still the rule in only a handful of states.
2. “Last Clear Chance” Doctrine
o Allows a negligent plaintiff to recover upon showing that the defendant had the last clear
chance to avoid injuring the plaintiff but failed to do so.
Example 77: Daisy is speeding and sees Myrtle negligently walk into the street.
She should not feel free to run her over on the theory that Myrtle’s contributory
negligence will relieve her of liability. If Daisy has the last clear chance to avoid
the injury, then contributory negligence will not be a bar.

B. Comparative Fault
• limits
Plaintiff’s negligence does not completely bar recovery; it ______________ the plaintiff’s ability
to recover
• Most jurisdictions have adopted a comparative fault approach.
1. Pure Comparative Negligence—the plaintiff’s recovery is reduced by the plaintiff’s percentage
of fault
Example 78: Jordan and Daisy negligently collide, and Jordan sues Daisy. If the
jury finds that the plaintiff (Jordan) is 10% at fault and Daisy is 90 % at fault.
Jordan will recover only 90% of the judgment that she was not at fault for.

Example 79: Alternatively, If the jury finds that the Jordan (the plaintiff) is 90%
at fault, then she can recover only 10% of her damages.

2. Modified Comparative Negligence

o more
If the plaintiff is ___________ at fault than the defendant, then the plaintiff cannot recover.

28 | © 2023 Themis Bar Review, LLC | MBE Torts

 Example 80: Jordan and Daisy negligently collide, and Jordan sues Daisy. If the
jury determines that Jordan is more at fault than Daisy, she cannot recover.

o equally
Some jurisdictions: If the plaintiff and defendant are _________________ at fault, then the
plaintiff’s recovery is barred.
Example 81: Jordan and Daisy negligently collide, and Jordan sues Daisy. If the
jury determines that Jordan is 50% at fault, she cannot recover.

3. Multiple Defendants
Example 82: Jordan, Daisy, and Gatsby are all driving negligently and end up in
a collision. Jordan sues Daisy and Gatsby in a modified comparative negligence
jurisdiction.

o If there is more than one defendant, the plaintiff’s negligence is compared with the total
negligence of all defendants combined.
Example 83: Jordan is 40% at fault and Daisy and Gatsby are each 30% liable
(60% liable together). Jordan can recover because her percent of fault is less
than Daisy and Gatsby combined.

Example 84: Jordan is 60% at fault and Daisy and Gatsby are each 20% at
fault. Jordan cannot recover because she is more at fault than the defendants
combined.

4. Relationship to Other Defenses

o Most comparative negligence jurisdictions no longer use the last clear chance doctrine.
o intentional
Comparative fault is not a defense to _________________________ torts
o If the defendant’s conduct rose to willful, wanton, or reckless, the plaintiff’s recovery may
still be reduced by the portion of the plaintiff’s own negligence.
C. Imputed Contributory Negligence
• One party’s negligence is imputed to another party
Example 85: An employee is negligently driving during the scope of
employment and is in a car accident with another negligent driver. The
negligence of the employee might be imputed to the employer in the employer’s
suit against the third party who negligently damaged the employer’s vehicle.

• Imputed contributory negligence is generally disfavored. It does NOT apply to:

o A child plaintiff whose parent’s negligence was a contributing cause of her harm, in a suit
against a third party.
o A married plaintiff whose spouse was contributorily negligent in causing the harm, in a suit
against a third party.
D. Assumption of the Risk
• knowingly
Applies when a party _________________________ willingly
and _________________________
embraces a risk for some purpose of his own
• consent
Analogous to the defense of _________________________ in intentional torts
• Can be express or implied

MBE Torts | © 2023 Themis Bar Review, LLC | 29

 1. Express Assumption of Risk
o Typically a writing, such as an exculpatory clause in a contract
o In general, parties can contract to disclaim liability for negligence.
o Courts will ask two questions:
 clear
Is the waiver _________________________?
 enforceable
Is the waiver _________________________?
o Courts might not enforce exculpatory provisions in certain situations:
 reckless
The waiver disclaims liability for __________________ wanton
or ______________ misconduct;
 bargaining power
There is a gross disparity of ____________________________ between the two parties;
 The party seeking to enforce the provision offers services of great importance to the
public
_________________________ (e.g., medical services);
 The provision is subject to contract defenses (e.g., fraud or duress);
 policy
The enforcement would be against public _________________________
2. Implied Assumption of Risk
a. Participants in and spectators of athletic events
 Courts often hold that a participant or spectator cannot recover because they knew of
the risks and chose to accept those risks.
b. Unreasonably proceeding in the face of known, specific risk
 Occurs when the plaintiff voluntarily encounters a known, specific risk
 Contributory negligence jurisdictions and a minority of comparative-fault
jurisdictions—this form of assumption of the risk remains a total bar to recovery.
 Most comparative fault jurisdictions—this form of assumption of the risk has been
merged into the comparative-fault analysis and merely reduces recovery.
• The issue is whether the plaintiff unreasonably encountered the risk

CHAPTER 16: STRICT LIABILITY

A. In General
• Under strict liability, defendants will be liable no matter how careful they were
• Three general categories:
o Abnormally _________________________ activities;
o _________________________; and
o Defective _________________________
B. Abnormally Dangerous Activities
1. Basic Rule—a defendant engaged in an abnormally dangerous activity will be held strictly liable
for personal injuries and property damage caused by the activity, regardless of
_________________________ taken to prevent the harm.
2. “Abnormally Dangerous” Activity Factors:
o Whether it creates a foreseeable and highly _________________________ risk of harm
even when the actor takes due care;

30 | © 2023 Themis Bar Review, LLC | MBE Torts

 o The _________________________ of the harm resulting from the activity;
o The appropriateness of the _________________________ for the activity;
o Whether it has great value to the community
Example 86: Blasting is the classic example.

3. Scope of Liability—defendant is liable for the harm that flows from the risk that made the
activity abnormally dangerous
Example 87: If your truck is full of explosives and it blows up, then you may be
strictly liable.

Example 88: If your truck is full of explosives and you run over a pedestrian,
then you are liable only if you were negligent, because that is not the risk that
made explosives abnormally dangerous.

C. Animals
1. Wild Animals—as a _________________________ or _________________________, not
customarily kept in the service of humankind
Note 14:This definition of “wild animals” is derived from the Second
Restatement. The Third Restatement narrows this definition by excluding
animals that pose no obvious risk of causing substantial personal injury.

a. Dangerous propensity—owners are strictly liable for the harm arising from the animal’s
dangerous propensities.
b. Liability to trespassers
 Injuries caused to _____________________ or _____________________—strictly liable
 _________________________—not strictly liable
• Exception in some jurisdictions: injuries caused by a __________________________
2. Domestic Animals
a. Known to be dangerous—if the owner _________ or has reason to know that the particular
animal has ___________________________________________, the owner is strictly liable.
b. “Dog-bite” statutes—many states hold dog owners strictly liable for injuries caused by dogs
Note 15:“Dog-bite” statutes vary widely from state to state.

3. Trespassing Animals—the owner of any animal is strictly liable for reasonably

________________________ damage caused by his animal while trespassing on another’s land.
Example 89: The cows get out and trample a neighbor’s property.

a. Exceptions:
 Household pets, unless the owner knows or has reason to know that the pet is intruding
on another’s property in a harmful way
 Animals on public roads—a _________________________ standard applies
D. Strict Liability Defenses
1. Contributory Negligence—the plaintiff’s contributory negligence ______________ bar recovery.

MBE Torts | © 2023 Themis Bar Review, LLC | 31

 2. Comparative Negligence—jurisdictions vary:
o In some, the plaintiff’s negligence does not bar recovery;
o In others, and under the Third Restatement, the plaintiff’s negligence will diminish the
recovery.
3. Assumption of the Risk—the plaintiff’s assumption of the risk is a ______________ to recovery.

CHAPTER 17: PRODUCTS LIABILITY

A. Overview
• A plaintiff can bring different types of claims for products liability:
o Negligence—plaintiff must prove duty, breach, causation, and damages
o Strict Liability for Defective Products
o Breach of Warranty Claim
B. Strict Products Liability
• There are three types of product defects: __________________________________ defects,
_________________________ defects, and failure to warn.
Example 90: A motorcycle may be defective in different ways:

Manufacture: The motorcycle has plastic bolts where there are supposed to be
metal bolts; the motorcycle was defectively manufactured.

Design: The motorcycle was built as designed, but it is unstable when carrying a
passenger or heavy rider; the motorcycle’s design is defective.

Failure to warn: The manufacturer should have warned riders that the
motorcycle cannot accommodate passengers.

1. Elements of a Claim—the plaintiff must show:

o The product was _________________________ (in manufacture, design, or failure to warn);
o The defect existed when the product left the defendant’s ________________________; and
o The defect caused the plaintiff’s injury when the product was used in a
_________________________ way.
Note 16:Strict liability can apply to multiple parties in the chain of producing
and selling the product. Potential defendants are discussed more below.

2. Establishing Defect Claims

a. Manufacturing defect
 The product deviated from its intended _________________________.
 The product does not conform to the manufacturer’s own ________________________.
b. Design defect—two tests:
 Consumer expectation test—the product is defective in design if it is less safe than the
_____________________________________________ would expect.
 Risk-utility test—the product is defective in design if the risks outweigh its benefits;
must show that there is a reasonable _________________________ design

32 | © 2023 Themis Bar Review, LLC | MBE Torts

 Note 17:The more technical the product is, the more likely it is that experts will
be required and the risk-utility test will apply.

c. Failure to warn—(i) was there a foreseeable risk that was not ________________________
to an ordinary user, and (ii) were the steps taken to warn about that risk reasonable?
 Learned Intermediary rule (Often applies to prescription drugs):
• Manufacturers of prescription drugs must warn the prescribing ________________.
• Exception: drugs marketed directly to consumers
d. Inference of defect—courts may allow proof of a defect by _________________________
evidence, especially when the defect causes the product to be destroyed.
3. Plaintiffs
o No privity requirement—can sue up and down the chain of production or distribution
o Anyone foreseeably injured by a defective product, including purchasers, other users, and
bystanders
4. Defendants
o Anyone who ________________ the product when it is defective is potentially strictly liable.
o Must be in the chain of distribution and in the _________________________ of selling
 Casual sellers—not strictly liable, but may be liable for negligence
Example 91: Selling something to a friend or neighbor.

o The seller may seek indemnification from another party (e.g., the manufacturer).

CHAPTER 18: PRODUCTS LIABILITY (CONT.)

A. Strict Products Liability (Cont.)
1. Damages
o Plaintiff can recover for ___________________________ or __________________________
o Purely economic loss—generally not recoverable under a strict-liability theory
Note 18:May be brought as a breach of warranty claim (discussed below).

2. Defenses
a. Contributory negligence—courts hesitate to allow the plaintiff’s negligence to completely
bar the plaintiff’s recovery against the defendant for a defective product.
b. Comparative fault—the plaintiff’s own _________________________ will reduce any
recovery in a strict-products-liability action.
c. Assumption of the risk—if the risk is one that the plaintiff knew about and
_________________________ chose, then the plaintiff will not be allowed to recover.
d. Product misuse, modification, or alteration
 The manufacturer (or seller) can be liable for a plaintiff’s _________________________
misuse, modification, or alteration of a product.

MBE Torts | © 2023 Themis Bar Review, LLC | 33

 Example 92: A manufacturer makes a car that explodes at speeds over 80
mph. Drivers are not supposed to speed, but it is foreseeable that drivers
exceed the speed limit. The manufacturer will be liable for the defect.

e. Substantial change in the product—can bar recovery

Example 93: Using a ceiling fan as an airplane propeller

f. Compliance with government standards

 Compliance with safety standards is _________________________ evidence that the
product is not defective, but it is not _________________________ evidence.
 Exception: federal preemption—when Congress has preempted regulation in a
particular area (expressly by statute or impliedly by regulating the field)
g. “State of the art” defense
 In some jurisdictions, the relevant state of the art at the time of manufacture or warning
is evidence that the product is not defective.
 In other jurisdictions, compliance with the state of the art is a _____________________
to recovery.
h. Disclaimers, limitations, and waivers—generally does not bar recovery in strict-liability
claims for defective products
B. Warranties
• Warranty claims may generally be brought up and down the distribution chain.
• Privity is not required.
1. Implied Warranties—Two types:
o Merchantability—the product is suitable for the ____________ purposes for which it is sold.
o Fitness for a particular purpose—the seller knows the particular purpose for which the
product is being sold, and the buyer ___________________ on the seller’s skill or judgment.
2. Express Warranties—an affirmation of fact or a promise by the seller that is part of the basis of
the bargain
3. Defenses
a. Disclaimers
Note 19:Disclaimers are covered in the Contracts materials.

b. Tort Defenses
 Contributory negligence
 Comparative fault
 Assumption of the risk
 Product misuse
C. Review
1. Three types of products liability suits:
o Negligence
o Strict liability for defective product
o Breach of implied warranty

34 | © 2023 Themis Bar Review, LLC | MBE Torts

 2. Three ways a product may be defective:
o Manufacture
o Design
o Failure to Warn

CHAPTER 19: DEFAMATION

A. In General
• In a defamation action, a plaintiff must prove that the defendant:
o Made a defamatory statement;
o That is _____________________________ the plaintiff;
o The statement was _________________________ to a third party who understood its
defamatory nature; and
o _________________________ to the plaintiff’s reputation results.
B. Defamatory Language
• Language that diminishes respect, esteem, or _________________________ toward the
plaintiff, or _________________________ others from associating with the plaintiff
• Falsity—defamatory statements must be false in order to be actionable
• An ________________ is not actionable as defamation. An opinion that implies a basis in fact is.
Example 94: If the defendant said, “In my opinion, John Jones is a terrible
artist,” that cannot be the basis for a defamation action because people can
disagree regarding the quality of an artist’s paintings.

Example 95: The statement, “In my opinion, John Jones is a thief,” could be
regarded as defamatory because it implies the fact that John Jones stole
something.

C. “Of or Concerning” the Plaintiff

• A reasonable person must believe that the defamatory language referred to this particular
plaintiff.
• Statements referring to a group—a member of the group can bring an action only if the group is
so small or the context is such that the matter can _________________________ be understood
to refer to that member.
D. Publication
• The statement must be communicated to a third party.
• A person who ______________________ a defamatory statement may be liable for defamation.
• Federal statute provides that internet service providers and platforms are
________________________________ for the purposes of defamation.
E. Constitutional Requirements—constitutional limitations will depend on the type of plaintiff and the
content of the statement.
1. Types of Plaintiffs
a. Public official—a person who has substantial responsibility or control over a
_________________________ office, including a political candidate

MBE Torts | © 2023 Themis Bar Review, LLC | 35

 b. Public figure
 General purpose public figure—a person of persuasive power and _________________
in society
 Limited purpose public figure—a person who thrusts himself into a particular
_________________________
c. Private individuals
2. Constitutional Limitations
a. Public official/public figure—the plaintiff must prove that the person who made the
statement either ___________ that it was false or acted with _________________________
for the truth
 Also called the “actual malice” standard
Note 20:Malice here does not mean motive; it means the defendant either
knew that the statement was false or was reckless with regard to the truth.

b. Private individual
 Matter of public concern—plaintiff must prove that the statement is _______________
and that the person who made the statement was _________________________ with
respect to the falsehood (should have known the statement was false)
 Not a matter of public concern—unclear whether constitutional limitations apply
• A state need not require a plaintiff to prove negligence
• But in most jurisdictions, a plaintiff must show that the defendant was at least
negligent as to the falsity of the statement.
F. Libel and Slander
1. Definitions
o Libel—a written, _________________________, or recorded defamatory statement
(including TV/radio broadcasts, e-mail, and electronic communications)
o Slander—a defamatory statement that is _________________________
2. Damages
o Libel—plaintiff may recover _________________________ damages (i.e., recovery without
_____________ of measurable harm)
o Slander—the plaintiff must prove _________________________ damages (requires a
showing of economic loss); exceptions include statements communicating slander per se:
 Commission of a serious _________________________
 Unfitness for a trade or profession
 Having a loathsome _________________________
 Severe _________________________ misconduct
G. Constitutional Limitations on Damages
1. Public Figures/Officials
o Actual malice standard = various types of damages available

36 | © 2023 Themis Bar Review, LLC | MBE Torts

 2. Private Individual and Matter of Public Concern
o Negligence standard = _________________________ damages only
o Actual malice standard = presumed damages available
3. Private Individual and a Matter of Private Concern
o Negligence standard (most states require at least negligence) = _______________ damages,
including presumed damages, without proving actual malice
H. Review of Defamation
• Ask: Is the plaintiff a public official/figure or private individual?
• To determine: Standard of proof in order to recover and available damages

CHAPTER 20: DEFENSES TO DEFAMATION; PRIVACY TORTS

A. Defamation Defenses
1. Truth—absolute defense; a truthful statement cannot be ___________________ as defamation.
2. Consent—if you consent to the defamation, you cannot sue.
3. Privileges
a. Absolute privileges—the speaker is completely _________________________ from liability
for defamation; includes statements made:
• In the course of judicial proceedings;
• In the course of _________________________ proceedings;
• Between _________________________; and
• In required publications by radio and TV (e.g., statements by a political candidate
that a station must carry and may not censor)
b. Conditional privilege (qualified)—Plaintiff must show a higher level of culpability
 Includes statements made:
• In the interest of the defendant (e.g., defending your reputation);
• In the interest of the _________________________ of the statement; or
• Affecting some important _________________________ interest
 Requirement—statement is made in good faith pursuant to some duty or responsibility
Example 96: Your company is about to hire someone. You tell the HR
department that you think the potential candidate has embezzled money from
another company. If your statement turns out to be false, you may be protected
by the conditional privilege.

B. Privacy Torts
• Right of privacy applies to _________________________, not _________________________
• Typically terminates upon the _________________________ of the plaintiff
• Invasion of privacy includes four separate causes of action
Note 21: Remember: I FLAP (Intrusion, False Light, Appropriation, Private facts)

MBE Torts | © 2023 Themis Bar Review, LLC | 37

 1. Intrusion Upon Seclusion—defendant intrudes upon the plaintiff’s private affairs, in a manner
that would be highly offensive to a _________________________ person
Example 97: Phone tapping; hacking into medical records; voyeurism

2. False Light—defendant (1) makes public facts about the plaintiff, (2) that place the plaintiff in a
false light, (3) which would be __________________________________ to a reasonable person
Example 98: Writing a story about one person and including a mug shot of
someone else.

3. Appropriation of the Right to Publicity—a property-like cause of action when someone (1)
appropriates another’s _________________________ or _________________________ (2) for
the defendant’s advantage (3) without _________________________, and (4) causes injury
Example 99: Utilizing someone’s voice in a commercial

Note 22:The appropriation must be exploitative, but it need not be commercial.

4. Public Disclosure of Private Facts

i) Defendant _________________________ a matter concerning the private life of another; and
ii) The matter publicized:
a) Is _________________________ to a reasonable person; and
b) Is not of _________________________ concern to the public.
o This tort is difficult to prove because courts broadly define “legitimate public concern”
5. Damages—plaintiff need not prove special damages (e.g., economic loss); emotional or mental
distress is sufficient
6. Defenses
o Consent—applicable to invasion of privacy torts
o Qualified and absolute privilege—applicable to “false light” and “public disclosure” claims
o Truth—NOT a defense to privacy torts, as opposed to defamation

CHAPTER 21: MISREPRESENTATION AND BUSINESS TORTS

A. Intentional Misrepresentation (Fraud)—established by proof of the following six elements:
1. False Representation
o Must be about a _________________________ fact
o Can involve deceptive or misleading statements
o Can arise through _________________________ a material fact
o Generally, no duty to _______________________ material facts to other parties; may be an
affirmative duty if:
 There is a _________________________ relationship;
 The other party is likely to be misled by statements the defendant made earlier; or
 The defendant is aware that the other party is _________________________ about the
basic facts of the transaction, and custom suggests that disclosure should be made.

38 | © 2023 Themis Bar Review, LLC | MBE Torts

 2. Scienter—defendant __________________ that the representation is false or acted with
__________________________________________________ for its falsity
3. Intent—defendant must intend to _______________ the plaintiff to act in _________________
on the misrepresentation
4. Causation—the misrepresentation must have caused the plaintiff to act or refrain from acting
5. Justifiable Reliance—reliance is NOT justifiable if the facts are _______________________ false
or it is clear that the defendant was stating an _________________________.
6. Damages
o Plaintiff must prove actual, economic, pecuniary loss
o _________________________ damages are NOT available.
o Most jurisdictions—recovery is the “benefit of the ____________________”: the difference
between the actual value received in the transaction and the value that would have been
received if the misrepresentation were true (contract-like damages)
o Some jurisdictions—allow only out-of-pocket losses (tort-like damages) or the cost of
conforming
Example 100: Nick persuades Gatsby to invest in a new aquarium by knowingly
misrepresenting that all the permits have cleared. In fact, Nick has not filed for
any permits. Nick intended to induce Gatsby to rely on his false statement, and
Gatsby did so. Nick will be liable to Gatsby for intentional misrepresentation.

B. Negligent Misrepresentation—failure to take due care in providing information

1. Elements
o The defendant provided _________________________ information to a plaintiff;
o As a result of the defendant’s _________________________ in preparing the information;
o During the course of a _________________________ or profession;
o Causing justifiable reliance and pecuniary loss; and
o The plaintiff is either:
 In a _________________________ relationship with the defendant; or
 The plaintiff is a third party known by the defendant to be a member of the limited
group for whose benefit the information is supplied
Editor's Note 2: The justifiable reliance must also cause the plaintiff to suffer
pecuniary loss.

Example 101: Tom, a real estate agent, knows Gatsby wants a quiet home. Tom
says that a particular home is surrounded by peace and quiet, when in fact an
extremely noisy long-term project is taking place next door. Tom did not know
about the project but should have known with reasonable care. Gatsby might
recover from Tom for negligent misrepresentation.

2. Defenses—negligence defenses can be raised

3. Damages—plaintiff can recover reliance (out-of-pocket) and _________________________
damages if the negligent representation is proven with sufficient certainty
Note 23:Negligent misrepresentation uses the same standard of care as
negligence, but it is a different cause of action. Generally, the tort of negligence
applies when there has been personal injury or property damage.

MBE Torts | © 2023 Themis Bar Review, LLC | 39

C. Intentional Interference with Business Relations
1. Intentional Interference with a Contract
a. Elements:
 A valid _________________________ existed between the plaintiff and a third party;
 Defendant knew of the contractual relationship;
 Defendant intentionally interfered with the contract, resulting in a _____________; and
 The breach caused damages to the plaintiff
b. Nature of the contract
 Must be a valid contract
 Cannot be terminable _________________________
c. Interference with performance other than inducing breach
 Defendant may be liable when he prevents a party from fulfilling its contractual
obligations or substantially adds to the _________________________ of performance
 Defendant’s conduct must exceed ____________________________________ and free
expression
2. Interference with a Prospective Economic Advantage
o Defendant intentionally interferes with a prospective business relationship or benefit
between the plaintiff and a third party, in the absence of a contract
o The elements are the same as for intentional interference with a contract (without the
contract), but the conduct must be ______________________________________________.
3. Misappropriation of Trade Secrets
o Plaintiff owns information that is not _________________________ (a valid trade secret);
o Plaintiff has taken reasonable precautions to protect it; and
o Defendant acquires the secret by _________________________
D. Injurious Falsehoods
1. Trade Libel—need not necessarily damage the business’s reputation
o Publication;
o Of a false or _________________________ statement;
o With _________________________;
o Relating to the plaintiff’s title to his business, the quality of his business, or the quality of its
products; and
o Causes special damages as a result of interference with or damage to business relationships
Example 102: You publish an article in the paper stating, “I would like to
congratulate my long-time friend and competitor who retired, closed his
business, and moved to Florida. I look forward to serving all of his customers.”
If this statement is false and damages the business, then it can be actionable.

2. Slander of Title
o Publication;
o Of a _________________________ statement;
o Derogatory to the plaintiff’s title;

40 | © 2023 Themis Bar Review, LLC | MBE Torts

 o With _________________________;
o Causing special damages; and
o Diminishes value in the eyes of third parties.
E. Wrongful Use of the Legal System
1. Malicious Prosecution
A person intentionally and maliciously institutes or pursues a legal action for an
__________________________, without ______________________________, and the action is
dismissed in favor of the person against whom it was brought.
2. Abuse of Process
o The defendant sets in motion a legal procedure in the proper form but has abused it to
achieve some _________________________ motive.
o Some willful act perpetrated in the use of the process that is not proper in the regular
conduct of that proceeding
Example 103: A local board of education sued a teachers’ union and
subpoenaed 87 teachers for a hearing in order to prevent the teachers from
walking a picket line during a labor dispute between the union and the board of
education.

o The conduct must also cause damages.

GOOD LUCK!

[END OF HANDOUT]

MBE Torts | © 2023 Themis Bar Review, LLC | 41

42 | © 2023 Themis Bar Review, LLC | MBE Torts