Torts Study Guide
Torts is the study of civil wrongs — injuries to persons or property caused by conduct that falls below the standard the law demands. The course introduces three primary theories of liability: intentional torts (where the defendant acts with purpose or knowledge that harm will result), negligence (where the defendant fails to exercise reasonable care), and strict liability (where liability attaches regardless of fault). Each theory has distinct elements, defenses, and policy justifications.
Negligence dominates most 1L torts courses and bar exam questions. The plaintiff must prove duty, breach, actual cause (cause-in-fact), proximate cause (legal cause), and damages. Courts define the standard of care using the reasonable-person test, sometimes supplemented by Judge Learned Hand's cost-benefit formula from United States v. Carroll Towing. Proximate cause limits liability to foreseeable consequences, as the landmark Palsgraf decision illustrates.
Products liability bridges negligence and strict liability, holding manufacturers and sellers accountable for defective products under manufacturing defect, design defect, and failure-to-warn theories. The evolution from privity-based liability (MacPherson v. Buick) to strict products liability (Greenman v. Yuba Power Products) is one of the most important doctrinal developments in American tort law. Defenses — contributory negligence, comparative fault, and assumption of risk — round out the subject.
Table of Contents
1Intentional Torts
Intentional torts require a voluntary act plus intent — either the purpose to bring about a particular result or substantial certainty that it will occur. Battery is a harmful or offensive contact with another person. Assault is an act creating a reasonable apprehension of imminent harmful or offensive contact. False imprisonment requires confinement within boundaries set by the defendant. Intentional infliction of emotional distress (IIED) requires extreme and outrageous conduct causing severe emotional distress. Trespass to land and trespass to chattels protect property interests. The transferred-intent doctrine allows intent directed at one person to satisfy the intent element as to another.
Key Doctrines
- Intent (purpose or substantial certainty)
- Transferred intent
- Battery
- Assault
- False imprisonment
- Intentional infliction of emotional distress (IIED)
- Trespass to land
- Trespass to chattels / conversion
- Defense of property
- Necessity (public and private)
2Negligence: Duty, Breach, Causation & Damages
Negligence is the most commonly tested tort theory. The plaintiff must establish four elements: (1) the defendant owed a duty of care, (2) the defendant breached that duty by failing to act as a reasonable person would under the circumstances, (3) the defendant's breach was the actual and proximate cause of injury, and (4) the plaintiff suffered legally compensable damages. The standard of care is objective — the hypothetical reasonable person — though special standards apply to children, professionals, and common carriers. Breach is often analyzed through the Hand formula (B < P x L).
Key Doctrines
- Reasonable person standard
- Hand formula (B < PL)
- Custom as evidence of care
- Negligence per se
- Res ipsa loquitur
- Actual cause (but-for test)
- Substantial factor test
- Proximate cause / foreseeability
- Intervening and superseding causes
- Market-share liability
- Eggshell-skull rule
Essential Cases
3Duty of Care: Special Relationships & Third Parties
There is no general duty to rescue or protect others. However, special relationships — such as those between doctors and patients, employers and employees, or psychotherapists and patients — can give rise to affirmative duties. Tarasoff v. Regents established that a therapist who knows a patient poses a serious danger to a third party has a duty to warn or protect. Premises liability categorizes entrants as invitees, licensees, or trespassers (though some jurisdictions have abandoned these categories). Social-host liability and negligent entrustment expand the duty web further.
Key Doctrines
- No-duty-to-rescue rule
- Special relationship exception
- Duty to warn (Tarasoff)
- Premises liability (invitee/licensee/trespasser)
- Social-host liability
- Negligent entrustment
- Bystander emotional distress (zone of danger / Dillon factors)
- Negligent infliction of emotional distress
Essential Cases
4Strict Liability
Strict liability imposes responsibility regardless of the defendant's level of care. At common law, strict liability applied to abnormally dangerous activities (blasting, storing explosives, keeping wild animals) and through the rule in Rylands v. Fletcher (escape of non-natural uses of land). The Restatement (Second) of Torts section 520 lists six factors for determining whether an activity is abnormally dangerous, including the high degree of risk, inability to eliminate the risk through reasonable care, and the inappropriateness of the activity to the location.
Key Doctrines
- Rylands v. Fletcher rule
- Abnormally dangerous activities (Restatement 2d section 520)
- Non-natural use of land
- Strict liability for wild animals
- Absolute liability vs. strict liability
- Nuisance (public and private)
5Products Liability
Products liability holds manufacturers, distributors, and retailers liable for defective products that cause injury. Liability can be based on negligence, strict liability, or breach of warranty. A product is defective under strict liability if it contains a manufacturing defect, a design defect, or an inadequate warning. Design-defect tests vary by jurisdiction — the consumer-expectations test and the risk-utility test (from Barker v. Lull Engineering) are the two primary approaches. The evolution from privity requirements (Winterbottom) to no-privity strict liability (Greenman) represents one of tort law's most significant transformations.
Key Doctrines
- Manufacturing defect
- Design defect (consumer-expectations test)
- Design defect (risk-utility test)
- Failure to warn / inadequate warning
- Strict products liability (Restatement 2d section 402A)
- Restatement 3d Products Liability
- Breach of implied warranty of merchantability
- Privity and its erosion
Essential Cases
6Defenses & Comparative Fault
Defenses to negligence include contributory negligence (plaintiff's own negligence completely bars recovery in a few jurisdictions), comparative negligence (pure or modified — plaintiff's recovery is reduced by their percentage of fault), and assumption of risk (express or implied). Last clear chance was a common-law doctrine softening contributory negligence. In strict liability, some jurisdictions allow comparative fault while others limit defenses to assumption of risk and product misuse.
Key Doctrines
- Contributory negligence
- Comparative negligence (pure and modified)
- Assumption of risk (express and implied)
- Last clear chance
- Avoidable consequences
- Product misuse
- Governmental immunity / sovereign immunity
- Joint and several liability
Exam Tips for Torts
Always start by identifying the theory of liability — intentional tort, negligence, or strict liability — before diving into elements. Many exam answers lose points by mixing elements across theories.
For negligence, use a structured IRAC for each element: duty, breach, actual cause, proximate cause, and damages. Do not skip steps even when one element seems obviously satisfied.
When analyzing breach, apply the Hand formula explicitly: identify the burden of precaution (B), the probability of harm (P), and the magnitude of loss (L). If B < P x L, the defendant was negligent.
Proximate cause is where most students struggle. Focus on foreseeability of the type of harm and the type of plaintiff. Use Palsgraf (Cardozo vs. Andrews) to frame the analysis and address whether an intervening cause breaks the chain.
For products liability, always analyze all three defect types (manufacturing, design, failure to warn) and note which test your jurisdiction uses for design defects. Apply both the consumer-expectations test and the risk-utility test when the question is ambiguous.
On duty questions, state the general rule (no duty to rescue), then systematically check for exceptions: special relationship, voluntary undertaking, creation of the peril, or statutory duty.
Comparative fault has largely replaced contributory negligence, but know both systems. Under pure comparative negligence, the plaintiff recovers even if 99% at fault; under modified systems (50% or 51% bar), the plaintiff is barred if equally or more at fault than the defendant.
When multiple defendants are involved, address joint and several liability, contribution, and indemnity. Use Summers v. Tice for alternative liability and Sindell for market-share liability.
Frequently Asked Questions
What are the elements of negligence?
Negligence requires four elements: (1) duty — the defendant owed the plaintiff a duty of care; (2) breach — the defendant's conduct fell below the applicable standard of care; (3) causation — the defendant's breach was the actual cause (but-for test) and proximate cause (legal cause, limited by foreseeability) of the plaintiff's injury; and (4) damages — the plaintiff suffered actual, compensable harm.
What is the difference between strict liability and negligence?
In negligence, the plaintiff must prove the defendant failed to act with reasonable care. In strict liability, the defendant is liable regardless of the level of care exercised. Strict liability applies to abnormally dangerous activities and defective products. The policy rationale is that those who engage in inherently risky activities or profit from selling products should bear the costs of resulting injuries.
What is res ipsa loquitur?
Res ipsa loquitur ('the thing speaks for itself') allows a jury to infer negligence when: (1) the accident is of a type that ordinarily does not occur without negligence, (2) the instrumentality causing the harm was in the defendant's exclusive control, and (3) the plaintiff did not contribute to the injury. It shifts the burden to the defendant to explain what happened.
What is the Palsgraf rule on proximate cause?
In Palsgraf v. Long Island Railroad (1928), Judge Cardozo held that a defendant owes a duty of care only to foreseeable plaintiffs — those within the zone of danger created by the defendant's negligent act. A defendant is not liable for unforeseeable consequences to unforeseeable plaintiffs. Judge Andrews dissented, arguing that everyone owes a duty of care to the world at large, and proximate cause should be determined by examining the chain of events.
How do courts analyze design defect claims?
Courts use two main tests for design defects. The consumer-expectations test asks whether the product failed to perform as safely as an ordinary consumer would expect. The risk-utility test (Barker v. Lull Engineering) asks whether the risks of the design outweigh its benefits, considering factors like the likelihood and severity of harm, the availability of a safer alternative design, and the feasibility and cost of that alternative. Some jurisdictions use one test, others apply both.
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