Torts Flashcards
(22 cards)
Battery
[High]
Battery (Simple Version):
A defendant is responsible for battery when:
1. They intentionally make
2. Harmful or offensive contact
3. With the plaintiff’s body or anything connected to it (like clothes, a purse, or something they’re holding).
Intent means the defendant either:
* Wanted to cause the contact or harm, or
* Knew the contact or harm was almost certain to happen.
Harmful contact = causes pain, sickness, or injury.
Offensive contact = would upset or offend a reasonable person (not someone super sensitive).
Important:
- The plaintiff doesn’t need to be hurt to sue.
- Even a small offense (like an unwanted poke) is enough — they can get nominal damages (a small money award to show their rights were violated).
Battery is intentional bad touch — even if it’s just annoying, not hurting.”
Quick breakdown of what this memory line reminds you:
* Intentional = must mean to do it (or know it will happen).
* Bad touch = harmful or offensive (painful or just disrespectful).
* Even if not hurting = no need for real injury; even small or rude touches count.
Battery Flowchart:
1. Did the defendant intend to touch the plaintiff (or know it would happen)?
2. Was the contact harmful or offensive (painful or disrespectful)?
3. Did the contact happen to the plaintiff’s body (or something attached to them)?
➔ If YES to all, it’s Battery!
Intentional Tort Defenses: Consent
[High]
Consent (Simple Version):
Consent is a defense to an intentional tort.
* Consent can be given by words (“yes”) or by actions (like nodding or letting something happen).
* You don’t have to say it directly to the defendant — if it looks like you agreed, that can be enough (this is called apparent consent).
* Example: If it’s normal for people to bump into each other at a crowded concert and you don’t complain, that’s consent.
* Sometimes, the law implies consent — like during a medical emergency, when a doctor treats you even if you can’t say yes right then.
Important Rules:
* The defendant must stay within the limits of what was agreed to. (If you agree to a hug, and they punch you, that’s not consent.)
* You must have the ability to give consent (you can’t consent if you’re unconscious, too young, or mentally unable).
* You can take back (withdraw) your consent anytime.
* Some courts say you can’t legally consent to a crime (like agreeing to a fistfight in public).
“Consent is a defense if it’s given by words, actions, or the situation — but it must be real, stay within limits, and can be taken back anytime.”
✅ Quick breakdown to help you remember:
* Words, actions, or situation = consent can be express, apparent, or implied by law.
* Must be real = person must have capacity (not unconscious, too young, etc.).
* Stay within limits = can’t go beyond what was agreed to.
* Can be taken back anytime = consent can be withdrawn.
Intentional Tort Defenses: Privileges
[High]
Privilege (Simple Version):
Normally, someone would be liable for an intentional tort — but privilege excuses their actions because of the situation.
* The defendant must bring it up and prove it (it’s their job to show they had a privilege).
✅ Types of Privileges:
* Necessity
o If the defendant’s action was needed (or reasonably seemed needed) to prevent serious harm to people or property, they aren’t liable for damaging someone else’s property.
o Public Necessity = Acting to protect everyone (like putting out a fire by breaking into a building) → Complete defense (no damages owed).
o Private Necessity = Acting to protect yourself or a few people → Partial defense (you are still responsible for any damage you cause).
🔹 Necessity only applies to property torts (like trespass to land or chattel).
- Self-Defense / Defense of Others
o A defendant is not liable if they:
1. Reasonably believed the plaintiff was about to hurt them or someone else, and
2. Used reasonable force to stop it (not too much). - Defense of Property
o You can use reasonable force to protect your stuff,
o BUT you can’t use deadly force just to protect property. - Recapture of Chattels (Getting your stuff back)
o If someone wrongfully takes your property, you can:
Act quickly and
Use reasonable, non-deadly force to get it back —
ONLY after asking for it back first (unless asking would be dangerous or pointless).
🔹 This does NOT apply if someone just defaults on a payment plan (like missing payments on a purchase).
- Detain for Investigation (Shopkeeper’s Privilege)
o A store can:
1. Briefly hold someone,
2. If they reasonably suspect theft,
3. In or near the store,
4. To investigate.
o They can use reasonable, non-deadly force if the person refuses to stay. - Privilege to Discipline
o Parents (and sometimes teachers) can use reasonable force to discipline children. - Privilege to Arrest
o Arrest privileges are usually set by statutes.
o A person can usually arrest if:
They witnessed a serious crime (like a felony),
And act properly under the law.
Quick Memory Trick for Privileges:
“Privilege excuses torts when you act to prevent harm, defend yourself or others, protect property, recover stuff, investigate, discipline, or arrest.”
🧠 Privilege Defense Flowchart
(Use this to structure your essay when a defendant raises privilege)
🔹 STEP 1: Identify the Tort
* Ask: What intentional tort is being claimed? (Battery? Trespass to land? Conversion?)
🔹 STEP 2: Did Defendant Claim Privilege?
* If so, go through the list below based on the facts.
🛡️ Checklist of Privileges
1. Necessity (Property Only)
o ✅ Public Necessity: Acting to protect the public → Complete defense
o ✅ Private Necessity: Acting to protect self or a few → Partial defense (liable for damage)
2. Self-Defense / Defense of Others
o ✅ Reasonable belief of danger
o ✅ Reasonable force (no deadly force unless life is at risk)
3. Defense of Property
o ✅ Reasonable force to protect property
o ❌ No deadly force just for stuff
4. Recapture of Chattels
o ✅ Chattel was wrongfully taken
o ✅ Prompt action taken
o ✅ Demand made first (unless dangerous/futile)
o ✅ Only non-deadly force
5. Shopkeeper’s Privilege (Detain for Investigation)
o ✅ Reasonable suspicion of theft
o ✅ Brief detention
o ✅ In/near store
o ✅ Investigation purpose
o ✅ Reasonable, non-deadly force
6. Privilege to Discipline
o ✅ Parent/guardian
o ✅ Reasonable force to discipline
7. Privilege to Arrest
o ✅ Usually requires statute
o ✅ Must be serious crime (felony)
o ✅ Defendant must observe or have legal authority
✍️ Essay Tip:
* Say: “Even though this would normally be a tort, the defendant may be privileged if [insert specific privilege and elements].”
* Analyze whether each element is met clearly and quickly.
Negligence [Prima Facie Case of Negligence]
[High]
Negligence (Simple Version):
To prove negligence, the plaintiff must show four things:
1. Duty:
The defendant owed a duty to be careful toward the plaintiff.
2. Breach:
The defendant broke that duty by acting carelessly (or failing to act).
3. Causation:
The defendant’s careless act actually caused and was close enough legally (proximate cause) to the plaintiff’s injury.
4. Damages:
The plaintiff actually suffered a loss or injury (not just almost hurt — real harm).
✅ Important:
To win, the plaintiff must show enough proof that a reasonable jury could believe all four parts happened
“Negligence = Duty, Breach, Cause, and Harm.”
(Think: D.B.C.H. — easy to chant in your head on the bar exam!)
🧠 Negligence Flowchart
🔹 STEP 1: Duty
Did the defendant owe a duty of care to the plaintiff?
(Example: We all owe a duty to act reasonably to avoid hurting others.)
🔹 STEP 2: Breach
Did the defendant fail to act carefully?
(Look for risky behavior or failing to do something a reasonable person would do.)
🔹 STEP 3: Causation
Actual Cause:
➔ Would the injury have happened without the defendant’s actions? (But-for test.)
Proximate Cause:
➔ Was the injury a foreseeable result of what the defendant did?
🔹 STEP 4: Damages
Did the plaintiff actually suffer harm?
(Physical injury, money loss, property damage, etc.)
✍️ Quick Essay Tip:
Say: “To establish negligence, the plaintiff must prove duty, breach, causation (actual and proximate), and damages.”
Then walk through each step clearly, one by one.
🔥 SUPER SHORT Memory Hook:
“Duty + Breach + Causation + Damages = Negligence.”
🏪❄️ Store Slip-and-Fall Negligence Example:
Duty:
Stores owe a duty to keep their floors safe for customers (to prevent people from slipping and falling).
Breach:
A store fails to clean up a big puddle of water on the floor for hours, even though employees walked by and did nothing.
Causation:
Actual Cause: The puddle caused a customer to slip and fall.
Proximate Cause: It’s foreseeable that leaving a wet floor unattended would cause someone to slip.
Damages:
The customer breaks their wrist and has medical bills and pain.
✅ Conclusion:
The store is negligent because they had a duty to keep the store safe, they didn’t fix the danger (breach), the puddle caused the fall (causation), and the customer got hurt (damages).
Negligence – Affirmative Duty to Act and Rendering Aid
[High]
Negligence – Affirmative Duty to Act (Simple Version)
💡 General Rule:
People usually don’t have to help others.
But sometimes, the law says you must help — this is called an affirmative duty to act.
✅ When You DO Have a Duty to Help:
1. Special Relationship:
You already have a relationship with the person (like parent-child, landowner-guest, employer-employee, etc.).
2. You Created the Danger:
If you caused the situation that put the person in danger, you must help.
3. You Volunteered to Help:
If you started helping, you must do it carefully.
4. The Law Requires It:
Some laws say you must act, like certain jobs (lifeguards, police, etc.).
🆘 If You Start Helping Someone (Rendering Aid):
If you choose to help someone, you must be careful.
You can be liable for their injuries if:
* (a) You act carelessly and make things worse, OR
* (b) They rely on your help, and you screw it up.
Also:
* If you start helping and then stop, and
* The person is left worse off than before,
➔ You can be liable for any harm they suffer.
🔥 Quick Memory Trick:
“No duty to help — unless you have a relationship, caused the danger, chose to help, or the law says so. If you help, don’t quit or mess it up!”
🚸 Example 1: Pre-Existing Relationship (Duty to Act)
A daycare worker sees a child choking and does nothing.
➔ Result: The daycare worker has a duty to help because there’s a special relationship (caretaker-child). If they don’t act, they can be liable for negligence.
🛟 Example 2: Voluntary Rescue and Stopping (Rendering Aid)
A person sees someone drowning and starts to swim out to save them, but halfway there they get tired, turn around, and swim back without helping.
The drowning person struggles even more because they were relying on help.
➔ Result: The rescuer can be liable for making the situation worse by starting and then quitting, leaving the person in a worse position.
✅ Key Takeaways from Examples:
Special relationship? → Duty to act.
Started helping? → Must use reasonable care and can’t abandon.
Negligence- Standard of Care: Reasonable Person Standard
[High]
Negligence – Standard of Care (Simple Version)
💡 Basic Rule:
Everyone must act the way a reasonable and careful person would act in the same situation.
* A reasonable person tries to avoid risks that they can see coming (foreseeable risks).
* You owe this duty to anyone who could be hurt by your actions (foreseeable plaintiffs).
✅ Extra Points:
* Customs (what everyone else usually does) and following the law (statutes) can help show what is reasonable behavior,
➔ BUT they do not automatically prove that the person acted reasonably or is free from fault.
➔ They are just evidence — not the final answer.
* If you know about special risks, you are expected to act with extra care based on that knowledge. * Businesses must also act like a reasonable business would under the circumstances.
✅ Special Rules for Disabilities:
* If a person has a physical disability (like being blind),
➔ They are compared to a reasonable person with that same disability.
* But if someone has low intelligence or a mental disability,
➔ They are still held to the regular reasonable person standard (no special break).
🔥 Quick Memory Trick:
“Negligence = Act like a careful person would. Customs and laws help, but don’t decide. Physical disability matters, mental does not.”
🧑🦽 Stronger Example 1: Physical Disability (Reasonable Person with Disability)
Facts:
A person who is paralyzed and in a wheelchair is navigating a store.
They go slowly and carefully, but the store has cluttered aisles.
Their chair accidentally bumps a fragile display and breaks it.
Result:
The wheelchair user is judged by what a reasonable person in a wheelchair would do.
➔ If they were careful and the store was unsafe, they are not negligent.
➔ Key: Physical disability adjusts the reasonable person standard.
🧠 Stronger Example 2: Mental Disability (Still Regular Reasonable Person Standard)
Facts:
A person with schizophrenia thinks a stranger is a danger, panics, and pushes them into traffic, causing injury.
The person argues they didn’t know pushing was wrong.
Result:
They are still judged by the regular reasonable person standard (no adjustment for mental illness).
➔ A reasonable person knows not to push someone into traffic.
➔ Therefore, they are liable for negligence.
✅ Key Lesson from Stronger Examples:
Physical Disability: The law asks: “Would a reasonable person with that same disability act that way?”
Mental Disability: The law says: “You must meet the regular reasonable person standard — no excuses.”
Negligence: Standard of Care: Children
Negligence – Standard of Care: Children (Simple Version)
💡 Basic Rule:
* Children can be negligent, but they are judged differently than adults.
* A child must act like a reasonable child with the same age, experience, and intelligence in the same situation.
✅ Special Rules for Children:
* Adult Activities:
➔ If a child is doing something adults normally do (like driving a car, motorcycle, tractor, motorbike, scooter, or snowmobile),
➔ The child is judged by the adult reasonable person standard — not by the kid standard.
(No special treatment just because they’re a kid when driving motor vehicles.)
* Physical Disabilities:
➔ A physically disabled child must act like a reasonable child with that same disability.
* Very Young Children:
➔ Under 5 years old (Restatement): Cannot be negligent.
➔ In some places: Kids under 7 years old are presumed unable to be negligent.
* Following Parent’s Instructions:
➔ If a child disobeys safety instructions from a parent (like “look both ways before crossing the street”),
➔ That can be proof the child was negligent.
🔥 Quick Memory Trick:
“Kids judged like kids — but if driving or doing adult things, judged like adults. Very young kids usually not liable.”
🎯 Bar Exam-Level Examples for Children Standard of Care
🧒 Example 1: Child Acting Like a Child (Use Child Standard)
Facts:
A 10-year-old is riding a bike down the sidewalk. He’s not reckless but accidentally bumps into someone walking because he loses control for a second.
Result:
The 10-year-old will be judged by what a reasonable 10-year-old with similar experience would do — not an adult.
➔ If he was riding normally for his age, he likely isn’t negligent.
🚗 Example 2: Child Doing Adult Activity (Use Adult Standard)
Facts:
A 16-year-old is driving a car without a license and runs a red light, causing an accident.
Result:
Even though he’s a minor, he will be judged by the reasonable adult driver standard — NOT the child standard.
➔ He can be negligent if he drove carelessly.
🧸 Example 3: Very Young Child (No Negligence)
Facts:
A 4-year-old runs out of a grocery store suddenly into the parking lot, causing a driver to swerve and crash into another car.
Result:
Under the Restatement (Third), a 4-year-old cannot be held liable for negligence.
➔ Children under 5 are exempt from negligence.
🧠 Example 4: Child Ignoring Parent’s Instructions
Facts:
A parent tells their 9-year-old “Stay out of the deep end of the pool.” The child ignores the parent, swims into the deep end, and bumps into another swimmer causing injury.
Result:
Ignoring clear safety instructions can be used as evidence that the child was negligent —
➔ A reasonable 9-year-old would have listened to the warning.
✅ Key Lessons from These Examples:
Regular activity = judged by kid standard (age, intelligence, experience).
Adult activity (like driving) = judged by adult standard.
Kids under 5 = no negligence.
Disobeying safety instructions = evidence of negligence.
🔥 One-Line Memory Hook:
“Kid standard for kid stuff, adult standard for adult stuff, no negligence under 5, disobeying parents = bad for kid.”
Negligence: Standard of Care: Professionals
📚 Negligence Standard of Care: Professionals (Simplified)
🔹 1. Basic Rule for Professionals
* Professionals (like doctors, lawyers, engineers, psychologists) must act with the same skill and knowledge as an average member of their profession.
* It’s not about doing their best — it’s about meeting the average standard for their job in a similar community.
💡 Example: A surgeon must do what a typical surgeon would do, not what a beginner surgeon might do.
🔹 2. Specialists (Higher Standard)
* If a professional claims to be a specialist (like a heart surgeon, not just a regular doctor), they must meet the higher skill level of other specialists in that field.
* Also, advances in the profession are considered — specialists must keep up with new knowledge.
💡 Example: A heart surgeon must stay updated on new heart surgery techniques — not just rely on old methods.
🔹 3. Proving Breach (Expert Testimony Needed)
* In most cases, you need an expert (another professional) to testify about what the proper standard was and whether it was broken.
* Regular people (jurors) usually can’t guess what counts as proper professional care without an expert explaining it.
💡 Example: Another doctor testifies that the surgeon should have ordered a CT scan based on symptoms.
🔹 4. Special Rule for Medical Doctors
* Doctors are judged by the national standard — not just by the standards in their local area.
* Doctors also must get informed consent from patients:
o They must explain risks of the treatment that a reasonable patient would want to know before agreeing.
💉 Example: Before surgery, the doctor must tell the patient about common risks like infection or bleeding.
🔹 5. Special Rule for Psychologists/Psychotherapists
* If a patient makes a serious threat to hurt someone, the therapist has a duty to warn the potential victim.
* A therapist can be liable if:
1. They believed the patient was a real threat,
2. The threat was of serious physical violence,
3. The threat was toward a readily identifiable victim (someone specific), and
4. They did not warn the victim or take protective steps.
🧠 Example: If a patient says they plan to attack a specific co-worker and the therapist does nothing to warn the co-worker, the therapist can be sued if the attack happens.
🎯 Quick Summary for Bar Exam
* Professionals = Must act like an average professional in their field.
* Specialists = Held to a higher standard (specialist level).
* Need expert testimony to show a breach.
* Doctors = National standard + Duty to inform patients of treatment risks.
* Therapists = Duty to warn identifiable victims if patient makes credible threats.
Negligence Per Se
High
🧠 WHAT IS NEGLIGENCE PER SE?
Negligence per se is a legal doctrine that lets a statute or regulation take the place of the common law “duty of care” in a negligence case.
📌 In normal negligence, a plaintiff must prove:
-Duty
-Breach
-Causation
-Damages
BUT — when negligence per se applies, the duty and breach are automatically satisfied if the defendant violated a statute designed to protect against the same harm suffered by a plaintiff in the protected class.
🔑 The plaintiff only needs to prove:
* Causation (the violation caused the harm)
* Damages (there was actual harm)
✅ ELEMENTS OF NEGLIGENCE PER SE (FOR BAR EXAM USE)
To apply the doctrine of negligence per se, the plaintiff must prove all three elements:
- There is a statute or regulation that sets a specific standard of conduct.
This is usually a criminal law, traffic rule, or safety statute.
The statute must be clear and specific (not vague or general).
- The plaintiff is within the class of persons the statute is designed to protect.
Ask: Who was the law meant to protect?
Example: A child under 8 in a child-safety-seat law. - The plaintiff suffered the type of harm the statute was intended to prevent.
Ask: What kind of injury or danger was the statute trying to avoid?
Example: A car seat law was meant to prevent injuries to young children in accidents.
📝 If all three are met, then duty and breach are considered proven as a matter of law.
🚫 TWO MAJOR EXCEPTIONS (Negligence Per Se Will NOT Apply)
Even if the three elements above are satisfied, courts may refuse to apply negligence per se if:
❗ Exception 1: Compliance with the statute would have been more dangerous.
Sometimes following the law in a specific moment would create more risk.
🧠 Example: A driver sees a child in the road and swerves, breaking a traffic rule (e.g., illegal lane change) to avoid hitting the child.
✅ The court may excuse this, because following the law (not swerving) would have caused more harm.
❗ Exception 2: Compliance was impossible under the circumstances.
If the person physically or legally couldn’t follow the law, they won’t be held liable under negligence per se.
🧠 Example: A driver’s turn signal breaks mid-trip, making it impossible to signal before turning.
✅ The driver may not be liable under negligence per se.
📘 EXAMPLES: APPLY THE RULE
✅ Example 1: Classic Use of Negligence Per Se
A statute says: “All children under 8 must be secured in a car seat.”
The defendant drives a 6-year-old without a car seat. They get into an accident, and the child is injured.
Apply the test:
There’s a statute: ✔️
Plaintiff (child) is in protected class: ✔️
Harm (car accident injury) is what the statute tries to prevent: ✔️
➡️ Negligence per se applies. Duty and breach are automatically met. Only causation + damages must be proven.
❌ Example 2: Harm Not Within the Statute’s Purpose
A law requires buses to stop at railroad crossings to prevent train collisions. A bus fails to stop and crashes into another car, causing injury to a pedestrian nearby.
Apply the test:
Statute exists: ✔️
Plaintiff (pedestrian) is NOT in the protected class: ❌
Harm (being hit by a car) is NOT the kind the statute was meant to prevent (train crashes): ❌
➡️ Negligence per se does NOT apply. Must proceed under ordinary negligence.
❌ Example 3: Exception Applies — More Dangerous to Comply
A driver crosses a double yellow line to avoid hitting a child who ran into the road. In doing so, they hit another car.
Apply the test:
Law was broken ✔️
Plaintiff is in protected class ✔️
Type of harm intended to be prevented ✔️
BUT—
Exception: Following the law (staying in lane) would have been more dangerous ❗
➡️ Negligence per se does NOT apply. The driver might still be liable under regular negligence, but not automatically.
❌ Example 4: Exception Applies — Impossible to Comply
A state law requires headlights to be on at night. A car’s headlight bulb burns out during the drive, and the driver is unaware. A crash happens.
Apply the test:
Law broken ✔️
Harm (nighttime crash) matches statute’s purpose ✔️
BUT—
**Impossible to comply **(driver didn’t know, light went out mid-drive): ❗
➡️ Negligence per se may not apply due to impossibility.
🧾 CHECKLIST: HOW TO SPOT NEGLIGENCE PER SE ON THE BAR
Step——>Question——->Yes/No
1 Is there a statute, regulation, or ordinance that sets a clear standard of conduct? ✅ Go to Step 2 ❌ No negligence per se
2 Was the plaintiff in the class the law was designed to protect? ✅ Go to Step 3 ❌ No negligence per se
3 Did the harm suffered match the type of harm the statute was meant to prevent? ✅ Move to exceptions ❌ No negligence per se
4 Was it impossible to comply, or more dangerous to comply with the law? ✅ No negligence per se ❌ Negligence per se applies
5 If negligence per se applies, prove causation + damages only ✔️
⚖️ RULE STATEMENT FOR BAR EXAM ESSAY (Model IRAC Style)
Under the doctrine of negligence per se, a statute may be used to establish the duty and breach elements of a negligence claim when the statute sets a specific standard of conduct.
To apply negligence per se, the plaintiff must show:
(1) that the statute was intended to protect against the type of harm that occurred; and
(2) that the plaintiff is in the class of persons the statute was designed to protect.
If proven, the plaintiff only needs to show causation and damages.
However, negligence per se will not apply if compliance was impossible or would have been more dangerous than noncompliance.
Res Ipsa Loquitur
⚖️ Res Ipsa Loquitur – Bar Exam Breakdown (in Plain English)
🧠 What is Res Ipsa Loquitur (RIL)?
Res Ipsa Loquitur is Latin for “the thing speaks for itself.”
This doctrine lets a plaintiff prove the breach element of negligence without direct evidence of what the defendant did wrong.
It’s used when the accident is so unusual that we can assume it probably happened because someone was careless — even if the plaintiff doesn’t know exactly what the defendant did.
📌 When Do You Use Res Ipsa Loquitur?
When a plaintiff cannot show how the defendant breached a duty (like a surgeon never telling you what went wrong during surgery), they can ask the court to infer negligence under this doctrine — based just on the nature of the accident.
✅ 3 Major Versions of the Test
🔹 1. Traditional (Majority) Test: 3 Elements
The plaintiff must show:
The type of injury doesn’t normally happen unless someone was negligent.
(Example: A barrel falling out of a warehouse onto someone’s head.)
The instrumentality (object or condition) that caused the injury was in the defendant’s exclusive control.
(Example: The barrel belonged to the defendant.)
The plaintiff did NOT contribute to the injury.
(Example: The plaintiff wasn’t messing with the barrel or climbing the warehouse.)
➡️ If all 3 are met, the jury may infer the defendant was negligent.
🔹 2. Restatement (Second) Test (Modern/Refined View):
This version is a bit more flexible.
The plaintiff must show:
The event is the kind that normally doesn’t occur without negligence.
Other causes (including the plaintiff’s actions and third parties) are reasonably ruled out by the evidence.
The kind of negligence involved falls within the scope of the defendant’s duty.
(You don’t have to show the risk is eliminated by reasonable care — just that it normally doesn’t happen without negligence.)
➡️ Courts are more willing to infer negligence even if strict “exclusive control” is missing.
🔹 3. Restatement (Third) Test (Bar-Friendly Simplification):
Used in some modern jurisdictions.
The factfinder (usually a jury) may infer negligence if both are true:
The accident is of a type that ordinarily happens because of the negligence of a class of actors (like doctors, mechanics, etc.), and
The defendant is a member of that class.
➡️ No need for “exclusive control” or proof plaintiff didn’t contribute.
⚠️ Important Limitation:
When there are multiple defendants, and the plaintiff can’t show which one was in control, res ipsa loquitur generally does NOT apply.
❌ You can’t use RIL to say “someone in that group was negligent” — unless all defendants were acting together or under joint responsibility (like in some surgery cases with a medical team).
📚 EXAMPLES – Apply the Doctrine
✅ Example 1: Classic RIL – Falling Barrel
A man walks down the street. A barrel falls out of a warehouse window and hits him. No one knows exactly what happened.
Barrels don’t normally fall unless someone was careless ✅
The warehouse owner had exclusive control of the barrels ✅
The man didn’t cause it ✅
➡️ Res ipsa loquitur applies. The court/jury can infer the warehouse owner was negligent.
✅ Example 2: Surgery Gone Wrong
A patient goes under anesthesia for stomach surgery and wakes up with a broken arm. No one will admit how it happened.
This injury (broken arm during stomach surgery) doesn’t happen without negligence ✅
Plaintiff was unconscious, so can’t know who caused it ✅
Defendant is part of the class of actors (medical team) whose negligence causes this kind of thing ✅
➡️ Res ipsa may apply under Restatement Third.
If the surgical team is considered jointly responsible, plaintiff may proceed.
❌ Example 3: Ice at the Grocery Store
A woman slips on ice in the frozen food aisle. There’s no camera footage and no employees nearby.
This could happen without negligence (e.g., another shopper dropped ice) ❌
Defendant (store) may not have had exclusive control ❌
Can’t rule out other causes ❌
➡️ Res ipsa does NOT apply. Plaintiff would need to prove regular negligence (e.g., failure to inspect or clean).
🧾 STEP-BY-STEP BAR EXAM CHECKLIST
Step———> Ask Yourself———–> Yes? No?
1 Did something happen that normally doesn’t occur without negligence? ✅ Go to Step 2 ❌ No RIL
2 Was the object/injury within defendant’s control or responsibility? (Traditional) ✅ Go to Step 3 ❌ Try modern tests
3 Did the plaintiff NOT contribute to the harm? (Traditional) ✅ RIL applies ❌ Try Restatement view
4 Are other causes ruled out by evidence? (Restatement 2nd) ✅ RIL may apply ❌ RIL unlikely
5 Is the defendant part of a class of actors whose negligence usually causes this type of harm? (Restatement 3rd) ✅ RIL may apply ❌ RIL unlikely
🧑⚖️ BAR EXAM MODEL RULE STATEMENT (IRAC-Ready)
Under the doctrine of res ipsa loquitur, a plaintiff may establish the breach element of negligence without direct evidence when the nature of the accident itself suggests negligence.
Traditionally, the plaintiff must show: (1) the event is of a type that does not ordinarily occur without negligence; (2) the instrumentality that caused the injury was in the defendant’s exclusive control; and (3) the plaintiff did not cause or contribute to the harm.
Modern courts following the Restatement Second require a showing that other causes (including the plaintiff and third parties) are reasonably ruled out, and that the type of negligence is within the scope of defendant’s duty.
Under the Restatement Third, negligence may be inferred when the accident typically occurs due to the negligence of a class of actors, and the defendant is a member of that class.
Res ipsa loquitur generally does not apply where there are multiple defendants and no evidence showing which one had control or caused the injury.
MEE TIP
Unless the essay question
states otherwise, you may apply
any one of the three Res Ipsa
Loquitur tests: Traditional Test,
Restatement (Second) Test, or
Restatement (Third) Test. This
occurred on the Feb. 2019 MEE
(Essay 1, Point Three), in which
the official analysis stated:
“Answers relying on any of these
variations should be given full
credit…
Causation: Actual and Proximate Cause
High
⚖️ Causation in Negligence – Bar Exam Breakdown (in Simple Terms)
🧠 Overview: Why Causation Matters
To win a negligence case, a plaintiff must prove:
Duty
Breach
✅ Causation (this part has two pieces)
Damages
🔍 What Is Causation?
Causation means the defendant’s conduct must be connected to the plaintiff’s injury in a meaningful way.
It has two parts:
Actual Cause (a.k.a. “Cause-in-Fact”)
Proximate Cause (a.k.a. “Legal Cause”)
You must prove both.
✅ 1. ACTUAL CAUSE (Cause-in-Fact)
🧪 “But For” Test (Main Rule)
Ask: But for the defendant’s actions, would the plaintiff have been injured?
If the answer is NO → then the defendant’s conduct was an actual cause of the harm.
If the answer is YES → then the defendant’s conduct was not necessary, so no actual cause.
🔥 Substantial Factor Test (Used for Multiple Causes)
Used when multiple forces could have caused the harm.
Ask:
👉 Was the defendant’s conduct a substantial factor in causing the harm?
Even if other things also caused it, the defendant is still liable if their conduct played a significant role.
Example: Two factory fires merge and burn down a house. Each fire alone could have done it. Both factories are actual causes if their fire was a substantial factor in the destruction.
🚧 2. PROXIMATE CAUSE (Legal Cause)
🧭 Foreseeability Test
Even if the defendant actually caused the harm, they’re only liable if the harm was a foreseeable result of their actions.
The injury must be a natural and probable consequence of the breach — not something too weird, unexpected, or far-fetched.
If the harm was foreseeable → ✅ Proximate cause exists.
If the harm was too remote or bizarre → ❌ No proximate cause.
🔗 Intervening vs. Superseding Causes
Sometimes, another person or force intervenes after the defendant’s action.
If that new force is foreseeable (like a medic making a mistake or someone speeding to the ER) → the defendant is still liable.
If it’s unforeseeable and breaks the chain of events (like a meteor hitting the ambulance) → it’s called a superseding cause, and cuts off the defendant’s liability.
📚 EXAMPLES – Understand Each Type of Causation
✅ Example 1: But-For Actual Cause
A driver is texting and runs a red light, hitting a pedestrian.
But for the driver’s texting and running the light, the pedestrian would be safe.
✅ Actual cause exists.
✅ Example 2: Substantial Factor Test
Two campers leave fires unattended. Each fire alone could have burned down the forest. The fires combine and destroy it.
Both fires are substantial factors.
✅ Each camper is an actual cause.
❌ Example 3: No Actual Cause
A shopper slips on a banana peel. The store owner didn’t clean the aisle, but the peel was dropped seconds ago by another customer.
Even if the store was negligent, the injury would have happened anyway.
❌ No “but for” causation. The store didn’t have time to act.
✅ Example 4: Proximate Cause – Foreseeable Harm
A bartender overserves a customer who later drives drunk and hits a pedestrian.
It’s foreseeable that overserving alcohol can lead to drunk driving.
✅ Bartender may be proximally liable.
❌ Example 5: No Proximate Cause – Too Remote
A delivery driver negligently crashes into a telephone pole, which starts a fire, which spreads to a building, which triggers an alarm, which panics a dog, who knocks down an elderly woman.
The injury to the woman is probably too remote and unforeseeable.
❌ No proximate cause.
🧾 CAUSATION CHECKLIST (Bar Exam Issue Spotting)
Step———> Ask———–> if Yes If No
1 But for the defendant’s act, would the harm have happened? ✅ Actual cause ❌ No actual cause
2 Were there multiple causes? If so, was defendant a substantial factor? ✅ Actual cause ❌ No actual cause
3 Was the harm a foreseeable result of the defendant’s action? ✅ Proximate cause ❌ Too remote
4 Was there an intervening cause? If foreseeable, ✅ defendant still liable If unforeseeable, ❌ superseding cause cuts liability
🧑⚖️ MODEL BAR EXAM RULE STATEMENT – IRAC STYLE
In negligence, the plaintiff must prove that the defendant’s conduct was both the actual cause and proximate cause of the injury.
Actual cause is usually established using the “but for” test: but for the defendant’s negligence, the injury would not have occurred. In cases with multiple causes, courts apply the substantial factor test — asking whether the defendant’s conduct was a significant contributor to the harm.
Proximate cause, or legal cause, limits liability to harms that are a foreseeable result of the defendant’s conduct. A defendant is not liable for injuries that are too remote, too attenuated, or that result from a superseding cause.
Proximate Cause: Intervening Causes
⚖️ Proximate Cause: Intervening & Superseding Causes – Bar Exam Breakdown
🧠 What’s the Issue?
Even when a defendant is the actual cause of an injury (using the “but for” or “substantial factor” test), they are only liable if they are also the proximate cause — meaning the harm was a foreseeable result of their actions.
But sometimes, something else happens after the defendant’s negligence — this is called an intervening cause.
The key question becomes:
❓ Did this intervening event cut off the defendant’s liability?
If YES → it’s a superseding cause, and the defendant is not liable.
If NO → it’s just an intervening cause, and the defendant is still liable.
📌 Basic Definitions
🔁 Intervening Cause (Neutral Term):
An event that happens after the defendant’s breach and that contributes to the plaintiff’s harm.
Can be foreseeable or unforeseeable
May or may not break the chain of causation
❌ Superseding Cause (Liability Breaker):
An unforeseeable intervening cause that becomes the primary cause of the injury and cuts off the defendant’s liability.
Think of it as a wild, unexpected event that breaks the chain between what the defendant did and the final harm.
✅ Which Intervening Causes Are Foreseeable (and DO NOT Cut Liability)?
These are NOT superseding — they are dependent on the defendant’s wrongful conduct and don’t break the chain.
- Medical Malpractice
Always foreseeable
Even if the doctor is negligent, the original defendant is still liable
Example: D hits P with a car. At the hospital, the doctor negligently makes P’s injuries worse.
✅ D is still liable for all injuries, including the doctor’s mistake.
- Rescue Efforts (Danger Invites Rescue Doctrine)
Rescuers are foreseeable
Even if the rescuer gets injured, or worsens the injury, D is liable
Example: D starts a fire. A neighbor runs in to save someone and gets injured.
✅ D is liable for the rescuer’s injuries, even if the rescue failed or caused more harm.
- Plaintiff’s Response (Escape or Panic)
If the plaintiff tries to flee or protect themselves, that’s a natural reaction
Any injuries that happen while doing so are foreseeable
Example: D’s dog charges at P. P runs away, falls, and breaks her arm.
✅ D is liable for the arm injury caused during the escape.
- Foreseeable Criminal Acts
Normally, criminal acts are NOT foreseeable (and are superseding)
BUT they ARE foreseeable if:
a) The defendant should have expected them, or
b) The defendant’s actions made them more likely
Example: D leaves an apartment door unlocked in a known high-crime area. A burglar enters and assaults P.
✅ D may be liable — the criminal act was foreseeable.
❌ What IS a Superseding Cause (and DOES Break the Chain)?
These are unforeseeable, independent, and extraordinary events that relieve the defendant of liability.
Examples of superseding causes:
Acts of God (e.g., lightning strikes, earthquakes, unless anticipated)
Random criminal acts unrelated to defendant’s conduct
Wild, bizarre events that aren’t part of the normal risk of the situation
Example: D negligently leaves a ladder in the street. A plane crashes and hits the ladder.
❌ That plane crash is so unrelated that it’s a superseding cause.
🔥 Liability for Rescue-Related Harm (Bar-Favorite Rule)
If a person is negligently injured, and others try to rescue them:
The original negligent actor is liable for:
Any new injuries caused by the rescue attempt
Even if the rescue was negligently performed
Even if it caused more harm than the original accident
Why? Because:
💡 “Danger invites rescue,” and rescue is a foreseeable consequence of danger.
📚 EXAMPLES – Apply the Rules
✅ Example 1: Medical Malpractice
D hits P with his car. The doctor messes up surgery, causing more damage.
Medical malpractice is foreseeable.
✅ D is liable for both the original and worsened injury.
✅ Example 2: Criminal Act Made More Likely
D leaves a gate unlocked at a school. A known gang member enters and attacks a student.
Criminal act was foreseeable based on D’s actions
✅ D is liable for the harm caused by the gang member.
❌ Example 3: Superseding Criminal Act
D forgets to lock a gate at a school. A random stranger parachutes in and stabs a student.
This criminal act was not foreseeable
❌ Breaks the chain of causation → Superseding cause
✅ Example 4: Rescue Worsens Harm
D causes a fire. A rescuer comes and accidentally drops P while pulling her out.
Rescue attempt is foreseeable, even if clumsy or negligent
✅ D is still liable.
✅ Example 5: Plaintiff Injured While Escaping
D causes a small explosion. P panics and jumps out a second-story window, breaking her leg.
Plaintiff’s reaction is a natural response
✅ D is liable for all resulting injuries.
🧾 BAR EXAM ISSUE-SPOTTING CHECKLIST
Step——–> Ask Yourself———-> Yes → No →
1 Did something happen after the defendant’s breach that contributed to the harm? Intervening cause → Step 2 [If no] then N/A
2 Was the intervening event foreseeable? [if yes] Defendant still liable [if no] May be superseding → Step 3
3 Was it a criminal act? Ask: Did D make it more likely or should D have expected it? [If yes] → D is liable; [if no] → Superseding cause
4 Was the event a rescue or a reaction to the danger? [If yes] These are always foreseeable → D is liable [if no] Rarely breaks the chain
5 Did the event cause enhanced injuries (e.g., rescue)? [If Yes] D is liable for enhanced harm [if no] Only not liable if injury is due to truly bizarre, unforeseeable event
🧑⚖️ MODEL RULE STATEMENT (IRAC Style)
An intervening cause is an event that occurs after the defendant’s breach and contributes to the plaintiff’s harm.
If the intervening event is foreseeable, it will not break the chain of causation, and the defendant remains proximally liable. Foreseeable events include:
Medical malpractice
Rescuer injuries (under the danger invites rescue doctrine)
Plaintiff’s escape or panic reactions
Certain criminal acts that are foreseeable or made more likely by the defendant’s conduct
If the intervening act is unforeseeable and extraordinary, it becomes a superseding cause, which breaks the causal chain and relieves the defendant of liability.
Causation: Eggshell Plaintiff Rule & Emotional Distress
Stemming from Physical Injury
High
⚖️ Eggshell Plaintiff Rule & Emotional Distress Recovery – Bar Exam Breakdown
🧠 PART 1: The Eggshell Plaintiff Rule
🔍 What It Means (in simple terms):
The Eggshell Plaintiff Rule means that a defendant (tortfeasor) is fully liable for all harm caused to the plaintiff — even if the plaintiff had a preexisting condition (physical or mental) that made the injury worse than it would be for an average person.
💡 “You take the plaintiff as you find them.”
So even if the defendant couldn’t have predicted the full extent of the harm, they’re still on the hook for all of it.
✅ Key Points for the Bar:
* Applies in negligence and intentional torts
* It’s a rule of causation, not foreseeability
* The defendant is liable for full damages, even if they didn’t know about the plaintiff’s vulnerability
📚 Examples:
✅ Example 1: Fragile Bone Condition
Defendant lightly bumps Plaintiff in a parking lot. Most people wouldn’t be injured — but Plaintiff has osteogenesis imperfecta (brittle bones) and suffers a severe fracture.
* Even though the injury is much worse than expected…
✅ The defendant is still fully liable under the Eggshell Plaintiff Rule
✅ Example 2: Preexisting PTSD
Defendant negligently causes a minor car accident. Plaintiff has a history of PTSD, and the accident triggers a major breakdown and panic disorder.
* Defendant didn’t know about PTSD
✅ Still liable for all emotional and psychological harm
🧠 PART 2: Emotional Distress Damages – Physical vs. No Physical Injury
🔍 Rule Summary:
A plaintiff can recover for emotional distress in two different ways — but they must meet different standards depending on whether there’s a physical injury or not.
✅ 1. Emotional Distress Caused by a Physical Injury
If the defendant’s conduct caused physical harm, then any emotional harm that flows from that injury is automatically recoverable.
* Includes pain and suffering, anxiety, depression, PTSD, etc.
* This is part of general damages in any physical injury case
* No need to prove a separate tort
✅ Example:
D hits P with a car, breaking her leg. P later develops depression and anxiety.
✅ P can recover for emotional harm as part of the personal injury claim.
❌ 2. Emotional Distress Without Physical Injury
If the plaintiff was not physically injured, they can only recover for emotional distress if they prove a Negligent Infliction of Emotional Distress (NIED) claim.
⚠️ To prove NIED, jurisdictions typically require one of the following:
🧷 Zone of Danger Rule (Majority)
Plaintiff must have been:
* In immediate physical danger, and
* Feared for their safety, and
* Suffered emotional distress as a result
👀 Bystander Rule (Alternate Test)
Plaintiff must:
* Witness a serious injury or death of a close relative
* Be near the scene, and
* Suffer severe emotional distress
❌ Example: Panic Attack from Near Miss
D nearly hits P with a car. P wasn’t touched but has a panic attack.
❌ P must bring an NIED claim — emotional distress is not recoverable automatically.
🧾 BAR EXAM CHECKLIST
Question————-> Yes → No →
Did defendant’s conduct cause a physical injury to the plaintiff? Emotional distress is recoverable as part of the personal injury claim Go to NIED analysis
Was the plaintiff’s injury worse than normal due to a preexisting condition? Defendant is still fully liable under Eggshell Plaintiff Rule Irrelevant — liability stays the same
Did the plaintiff suffer emotional harm only, without physical injury? Plaintiff must prove NIED using appropriate test Skip NIED — include mental damages in regular claim
🧑⚖️ MODEL RULE STATEMENT – IRAC STYLE
Under the Eggshell Plaintiff Rule, a defendant is liable for the full extent of a plaintiff’s injuries, even if those injuries were more severe due to a preexisting physical or mental condition. The tortfeasor takes the victim as they find them, and foreseeability of the extent of harm is not a defense.
In addition, a plaintiff may recover emotional distress damages that stem from a physical injury caused by the defendant’s negligence as part of their general personal injury damages. However, if the plaintiff did not suffer a physical injury, they must satisfy the requirements of a Negligent Infliction of Emotional Distress (NIED) claim to recover for mental distress.
Defenses to Negligence Claims
⚖️ Defenses to Negligence: Comparative Negligence & Contributory Negligence
🧠 Why This Matters:
Even if a defendant was negligent, the plaintiff’s own carelessness might limit or even bar recovery.
These doctrines are defenses raised by the defendant to reduce or eliminate damages based on the plaintiff’s role in causing their own harm.
🧮 THE THREE NEGLIGENCE DEFENSE SYSTEMS (Bar Exam Focus)
🔹 1. Pure Comparative Negligence (Majority Rule)
❝ Plaintiff’s recovery is reduced by their percentage of fault — even if they are mostly at fault.❞
* Plaintiff can recover even if they were 99% at fault
* Their damages are just reduced by their share of the blame
✅ Example:
Plaintiff suffers $100,000 in damages
Jury finds Plaintiff 80% at fault, Defendant 20% at fault
➡️ Plaintiff recovers: $20,000 (100,000 - 80%)
✅ Still allowed to recover even if mostly at fault.
🔸 2. Partial (Modified) Comparative Negligence
❝ Plaintiff can recover only if they are less than 50% at fault (or sometimes, not more than 50%).❞
* There are two versions used in different states:
o “Less than 50%” Rule: If Plaintiff is 50% or more at fault, they recover nothing
o “Not more than 50%” Rule: If Plaintiff is 51% or more at fault, they recover nothing
✅ Example (Less than 50% Rule):
Plaintiff is 40% at fault, Defendant is 60%
Plaintiff’s damages = $100,000
➡️ Plaintiff recovers $60,000
❌ Example (Barred):
Plaintiff is 51% at fault
➡️ No recovery allowed under partial comparative negligence
🔻 3. Contributory Negligence (Strictest Rule – Minority of States)
❝ If the plaintiff was even 1% negligent, they recover nothing.❞
* Harsh rule — still followed in only a few states (like Alabama, Maryland, D.C.)
* No balancing or reduction — just a complete bar to recovery
⚠️ BUT — There Are 2 Major Exceptions to Contributory Negligence:
🛑 a) Last Clear Chance Doctrine
If the defendant had the last opportunity to avoid the harm and failed to do so, plaintiff can still recover — even if plaintiff was also negligent.
🔥 b) Reckless or Willful Misconduct
If the defendant acted recklessly, the plaintiff’s contributory negligence does not bar recovery.
📚 EXAMPLES – Apply the Rules
✅ Example 1: Pure Comparative Negligence
Plaintiff: 90% at fault
Defendant: 10% at fault
Damages: $100,000
➡️ Plaintiff gets: $10,000
✅ Recovery allowed under pure comparative.
❌ Example 2: Partial Comparative Negligence
Plaintiff: 51% at fault
Defendant: 49% at fault
Damages: $100,000
➡️ Plaintiff gets: $0
❌ Barred under partial comparative negligence (“less than 50%” rule)
❌ Example 3: Contributory Negligence
Plaintiff: 1% at fault
Defendant: 99% at fault
➡️ Plaintiff gets: $0
❌ Barred under contributory negligence rule
✅ Example 4: Contributory Negligence + Last Clear Chance
Plaintiff crosses the road negligently. Defendant sees them but still speeds and hits them.
➡️ Even though Plaintiff was negligent, Defendant had the last clear chance
✅ Plaintiff can recover under the exception
🧾 BAR EXAM CHECKLIST
Question Yes → No →
Is this a pure comparative negligence jurisdiction? Plaintiff can recover no matter their fault % (reduced by their share) Go to next question
Is this a partial comparative negligence jurisdiction? If Plaintiff <50% (or ≤50%), reduce recovery; if ≥51%, barred Go to next question
Is this a contributory negligence jurisdiction? Any Plaintiff negligence bars recovery Apply exceptions
Did Defendant have the last clear chance to avoid harm? Plaintiff may still recover Plaintiff is barred
Did Defendant act recklessly or willfully? Plaintiff may still recover Plaintiff is barred
🧑⚖️ MODEL BAR EXAM RULE STATEMENT – IRAC FORMAT
Comparative and contributory negligence are defenses to negligence that consider the plaintiff’s own fault in causing their injury.
Under the pure comparative negligence rule, a plaintiff’s recovery is reduced by their percentage of fault, but they may still recover regardless of how much at fault they are.
Under the partial (modified) comparative negligence rule, a plaintiff may recover only if their fault is less than (or not more than) 50%, and their damages are reduced accordingly.
In contributory negligence jurisdictions, any negligence by the plaintiff completely bars recovery. However, exceptions exist where the defendant had the last clear chance to avoid the injury or where the defendant acted recklessly.
Step 3
🧾 Detailed Bar Exam Checklist: Defenses to Negligence
This checklist walks you through exactly what to ask to determine how a plaintiff’s negligence affects their ability to recover damages.
Step 1: Is this a jurisdiction that uses comparative or contributory negligence?
⬜ Is the jurisdiction a Pure Comparative Negligence jurisdiction?
✅ Plaintiff’s negligence does NOT bar recovery
✅ Plaintiff can be 99% at fault and still recover
✅ Damages are reduced proportionally to plaintiff’s fault
Example: If Plaintiff is 80% at fault, and suffers $100,000 in damages, recovery = $20,000
👉 Proceed to calculate % reduction only
⬜ Is the jurisdiction a Partial (Modified) Comparative Negligence jurisdiction?
Two versions exist — identify which one applies:
🔹 Version A: “Less Than 50% Rule”
❗ Plaintiff must be less than 50% at fault to recover
✅ If Plaintiff is 49% or less → Recover reduced damages
❌ If Plaintiff is 50% or more → No recovery
🔹 Version B: “Not More Than 50% Rule”
❗ Plaintiff can be up to 50% at fault and still recover
❌ If Plaintiff is 51% or more → No recovery
👉 Be sure to read the call of the question to identify which variation applies
⬜ Is the jurisdiction a Contributory Negligence jurisdiction?
(Recognized in very few jurisdictions, e.g., Alabama, Maryland, North Carolina, D.C.)
❌ Any fault at all by the plaintiff = complete bar to recovery
❗ Even 1% fault by plaintiff means no recovery
If contributory negligence applies, go directly to Step 2 to check for exceptions
Step 2: Are there exceptions that would allow plaintiff to recover in a contributory negligence jurisdiction?
⬜ Last Clear Chance Doctrine
Ask: Did the defendant have the final opportunity to avoid the harm after the plaintiff’s negligent conduct?
✅ If yes → Plaintiff may still recover despite contributory negligence
❌ If no → Plaintiff is still barred from recovery
Example: Plaintiff stumbles into the road. Defendant sees Plaintiff but doesn’t brake in time even though they could have.
✅ Last clear chance applies → Defendant liable.
⬜ Defendant’s Recklessness or Willful Misconduct
Ask: Was the defendant reckless, willful, or grossly negligent (not just ordinary negligence)?
✅ If yes → Plaintiff’s contributory negligence does not bar recovery
❌ If defendant was only ordinarily negligent → Plaintiff’s recovery is barred
Example: Plaintiff jaywalks. Defendant was drag racing and hits them.
✅ Reckless driving makes contributory negligence inapplicable
Step 4: Always Consider Public Policy & Fairness in Essay Questions (if asked)
Does applying the defense seem excessively harsh?
Is the plaintiff significantly less culpable than the defendant?
Would applying last clear chance or recklessness exception lead to a fairer result?
Bar graders reward analysis that considers these arguments, especially in contributory negligence jurisdictions.
Negligent Infliction of Emotional Distress
⚖️ Negligent Infliction of Emotional Distress (NIED) – Bar Exam Breakdown
🧠 What Is NIED?
Negligent Infliction of Emotional Distress is a standalone tort that allows recovery for mental/emotional harm when there is no physical injury — or when the emotional harm is the primary injury.
Unlike standard negligence claims, where physical harm is required, NIED focuses on emotional trauma caused by a defendant’s negligence.
But — courts limit recovery to specific scenarios to prevent floodgates of litigation.
🔺 BAR EXAM ALERT:
There are three main categories of NIED claims:
Near-Miss (Zone of Danger) Cases
Bystander Witness Cases
Special Relationship Cases
Let’s break them down one by one.
🔹 1. Near-Miss Cases (Zone of Danger)
✅ Elements (Majority Rule):
The defendant was negligent
The negligence created a foreseeable risk of physical harm
The plaintiff was in the zone of danger (almost physically injured)
The plaintiff suffered severe emotional distress, which manifested in physical symptoms
💡 This covers the classic “almost hit me” scenario.
📚 Example:
Defendant almost hits Plaintiff with a car while speeding. Plaintiff jumps out of the way, avoids impact, but develops anxiety, insomnia, and heart palpitations.
✅ Plaintiff was:
In the zone of danger
Exposed to a real threat of physical harm
Suffering physical symptoms of emotional distress
➡️ Recovery allowed under NIED (Near Miss)
⚠️ Physical Symptoms Requirement:
Some jurisdictions still require it
Others now allow recovery for severe emotional harm alone
✅ Check facts for panic attacks, nausea, loss of sleep, or other medical evidence
🔹 2. Bystander Emotional Distress
✅ Elements (Majority Rule):
Defendant was negligent
Plaintiff witnessed the injury occur to a close family member (parent, child, spouse)
The event caused severe emotional distress
Many jurisdictions require:
Physical symptoms of distress
That the plaintiff be present or nearby (contemporaneous witness)
Some may even require that the plaintiff was also in the zone of danger
💡 This is about emotional trauma from watching a loved one be hurt or killed.
📚 Example:
Plaintiff sees their child hit by a negligent driver and suffers PTSD.
✅ Requirements:
Close family member: ✔️
Contemporaneous witness: ✔️
Emotional distress w/ physical symptoms: ✔️
➡️ Plaintiff may recover under Bystander NIED
❌ Common Bystander Mistakes:
Plaintiff was not present at the time (e.g., arrived later)
Injury was to a non-family member (e.g., friend, fiancé, coworker)
No physical symptoms
➡️ ❌ No recovery in most jurisdictions
🔹 3. Pre-Existing Relationship Cases
✅ Elements:
There is a special relationship between Plaintiff and Defendant
Defendant’s negligence creates a foreseeable risk of serious emotional harm
Recovery is only allowed in rare, egregious cases
📚 Common Relationship Examples:
Doctor–Patient: misdiagnosing a serious illness or death
Funeral Home–Family: mishandling remains
Morgue–Relative: giving the wrong body or cremation
💡 Plaintiff can recover without physical injury if emotional harm is foreseeably severe based on the relationship.
📚 Example:
A hospital negligently tells a mother that her newborn has died (when the child is alive), causing her psychological trauma.
✅ Foreseeable distress + special relationship = NIED recovery allowed
🧾 DETAILED BAR EXAM CHECKLIST
Use this checklist to identify and analyze an NIED claim on an essay or multiple-choice question.
Step Question Yes → No →
1 Is the emotional harm the main injury or is there no physical injury? Continue to NIED analysis Regular negligence claim may apply
2 Was the plaintiff in immediate physical danger (zone of danger)? Apply Near Miss test Move to next question
3 Did plaintiff witness harm to a close family member? Apply Bystander NIED test Move to next question
4 Was plaintiff present at the scene? Supports bystander claim Most courts deny recovery if not present
5 Did plaintiff suffer physical symptoms from the distress? Required in many jurisdictions Still argue distress if state allows
6 Was there a pre-existing relationship between P and D? (e.g., doctor-patient, funeral home-family) Apply Special Relationship NIED Recovery unlikely
7 Was the emotional harm foreseeable based on that relationship? Recovery may be allowed No claim under this category
🧑⚖️ MODEL RULE STATEMENT – IRAC FORMAT
A plaintiff may recover for Negligent Infliction of Emotional Distress (NIED) in three limited circumstances.
First, under the zone of danger (near miss) rule, a plaintiff may recover if: (1) the defendant was negligent; (2) the negligence created a foreseeable risk of physical harm; (3) the plaintiff was in the immediate zone of danger; and (4) the plaintiff suffered emotional distress accompanied by physical symptoms.
Second, under the bystander theory, the plaintiff may recover if: (1) they were a contemporaneous witness to a serious injury caused by the defendant’s negligence; (2) the victim was a close family member; and (3) the plaintiff experienced emotional distress with physical manifestations. Some jurisdictions also require the plaintiff to be in the zone of danger.
Third, a plaintiff may recover for NIED if there is a pre-existing special relationship between the parties, and the defendant’s negligence foreseeably causes emotional distress. This is only allowed in egregious situations, such as mishandling of a corpse or misdiagnosis by a doctor.
Vicarious Liability & Respondeat Superior
🧠 What’s the Core Idea?
Under the doctrine of respondeat superior (“let the master answer”), an employer is vicariously liable for torts committed by an employee if the tort was committed within the scope of employment.
The employer is not liable because they did anything wrong, but because of the employment relationship with the person who caused the harm.
✅ BASIC RULE:
An employer is vicariously liable for an employee’s negligent conduct (and sometimes intentional torts) that is:
* Committed within the scope of employment, and
* Intended (at least in part) to serve the employer’s interests
🔄 What Does “Scope of Employment” Mean?
An employee’s act is within the scope of employment if:
1. ✅ The act was the kind of thing the employee was hired to do
2. ✅ It occurred during work hours and in the workplace
3. ✅ It was motivated (at least partly) by a desire to serve the employer
4. ✅ The conduct was authorized, or at least closely related to the authorized conduct
5. ❌ It was not a personal frolic or detour
➡️ If these are met → employer is liable
📌 KEY DISTINCTION: Detour vs. Frolic
* Detour = minor deviation from job → ✅ still within scope
* Frolic = major personal mission → ❌ outside scope
Example: A delivery driver stops for coffee (detour) – employer is still liable.
But if the driver leaves the route to visit a friend (frolic) – no employer liability.
🚫 NOT Within Scope of Employment When:
1. The conduct was part of an independent course of action,
2. Unrelated to the employer’s business, and
3. Not intended to serve the employer at all
💥 Intentional Torts – Special Rule
Employees’ intentional torts (e.g., assault, battery) are usually NOT within the scope of employment … unless:
1. ✅ The act was specifically authorized by the employer
2. ✅ The employee was trying to serve the employer (even through wrongful means)
3. ✅ The tort resulted from natural friction or risk that comes with the job
Think of bouncers, debt collectors, security guards — jobs where aggression or conflict is part of the role
📚 EXAMPLES – Apply the Doctrine
✅ Example 1: Negligent Driving During Delivery
P is hit by a pizza delivery driver who was speeding to deliver an order.
* Driving was part of the job ✔️
* Happened during work hours ✔️
* Motivated to serve the employer ✔️
✅ Within scope → Employer is vicariously liable
❌ Example 2: Employee Runs Personal Errand
An employee leaves work early to go shopping, hits someone on the way.
* Not part of job ❌
* Personal mission ❌
* Not serving employer ❌
❌ Frolic → No employer liability
✅ Example 3: Minor Detour
A delivery driver stops for lunch and hits a pedestrian pulling out of the drive-thru.
* Still on delivery route ✔️
* Slight deviation ✔️
✅ Detour → Employer is still liable
❌ Example 4: Intentional Tort Outside Scope
A cashier punches a customer in a random personal dispute.
* Not part of job ❌
* Not serving employer ❌
❌ No liability for employer
✅ Example 5: Intentional Tort With Job-Related Friction
A bouncer at a nightclub shoves an unruly patron too hard and causes injury.
* Physicality is part of the job ✔️
* Friction is expected ✔️
✅ Intentional tort was foreseeable → Employer may be liable
🔎 Bar-Favorite Intentional Tort Test (for Employees)
Condition Outcome
Act was specifically authorized by employer ✅ Within scope
Act was intended to serve employer’s purpose ✅ Within scope
Act was natural result of job-related friction ✅ Within scope
Act was purely personal and unexpected ❌ Outside scope
Vicarious Liability: Liability Where Respondeat Superior
Doctrine is Inapplicable
⚖️ Vicarious Liability – When Respondeat Superior Doesn’t Apply
🧠 Overview:
Normally, under the doctrine of respondeat superior, an employer is vicariously liable for torts committed by an employee acting within the scope of employment.
But what if:
The employee was off-duty?
The employee was on a frolic?
The person wasn’t even an employee?
➡️ The employer might still be liable under alternative vicarious liability theories.
🔍 4 Key Exceptions to Know for the Bar Exam:
Even if respondeat superior doesn’t apply, the employer or principal may still be liable under four alternative theories:
✅ 1. Principal Intended the Conduct or Consequences
🔹 If the employer or principal intended the tortious conduct (or its consequences), they’re personally liable.
Doesn’t matter if the employee was off-duty or acting independently
This is direct liability, not just vicarious
🧠 Example: A company manager orders a bouncer to “rough up” a patron who complained.
✅ The company is liable — the conduct was intended.
✅ 2. Negligent Hiring, Training, or Supervision
🔹 An employer may be liable for its own negligence in selecting, training, supervising, or retaining a dangerous employee.
The employer doesn’t need to control the act — just be negligent in managing the employee
🧠 Example: A daycare hires a worker with a known history of child abuse. That employee later assaults a child.
✅ The daycare is liable for negligent hiring and supervision.
✅ 3. Non-Delegable Duty
🔹 Some duties are so important or tied to public safety or special relationships that the law does not allow the employer to avoid responsibility by hiring someone else.
Even if the work is delegated to an independent contractor, the principal cannot escape liability
Common in premises liability, public safety, and transportation
🧠 Example: A hospital hires an independent contractor to sterilize surgical tools. They fail to do so, causing infection.
✅ The hospital had a non-delegable duty to maintain sanitary conditions → liable.
🧠 Another Example: A landlord hires a contractor to repair wiring, who causes a fire.
✅ The landlord is liable if it had a non-delegable duty to keep the premises safe.
✅ 4. Apparent Authority / Agency by Estoppel
🔹 Even if someone is not an employee, a principal may be liable if they create the appearance of authority and a third-party relies on it.
This applies when:
The principal holds the agent out as having authority
The third party reasonably believes the agent is authorized
The agent’s tort was committed while appearing to act under that authority
🧠 Example: A hotel lets a bellhop wear a uniform and handle guest luggage. He assaults a guest while helping them.
✅ The hotel may be liable because the bellhop appeared authorized, and the guest relied on that appearance.
📚 Summary Table – Bar-Favorite Exceptions to Respondeat Superior
Exception Trigger Rule
Intentional Conduct Principal intended the act or harm Direct liability
Negligent Hiring/Training Employer knew or should’ve known employee posed a risk Negligence-based liability
Non-Delegable Duty Employer can’t contract out essential safety duties Strict duty to injured party
Apparent Authority Agent appeared to be acting on employer’s behalf, and 3rd party relied Vicarious liability even if no real authority
🧾 BAR EXAM CHECKLIST
Question Yes → No →
Did the principal/employer intend the tort or result? ✅ Direct liability Continue
Was the principal negligent in hiring, training, or supervising the tortfeasor? ✅ Negligent employer liability Continue
Did the principal owe a non-delegable duty to the plaintiff? ✅ Liability for independent contractor’s act Continue
Did the agent appear to have authority, and did a third party rely on it? ✅ Apparent authority = principal is liable ❌ No vicarious liability
🧑⚖️ MODEL RULE STATEMENT – IRAC Format
Even when respondeat superior does not apply, a principal or employer may still be liable for an agent’s or contractor’s tort under several doctrines.
First, a principal is personally liable if they intended the conduct or consequences of the tort.
Second, an employer may be directly liable for its own negligence in the hiring, training, supervision, or retention of the tortfeasor.
Third, a principal may be liable where the tort arises from a non-delegable duty, such as those involving public safety or a special relationship with the injured party.
Finally, under the doctrine of apparent authority, a principal is vicariously liable when: (1) the agent appears to be acting with authority; (2) the third party reasonably relies on that appearance; and (3) the agent’s conduct falls within the apparent scope of that authority.
⚖️ Vicarious Liability – Employee vs. Independent Contractor
⚖️ Vicarious Liability – Employee vs. Independent Contractor
🧠 Why This Matters:
Vicarious liability (especially under respondeat superior) only applies to employees, not independent contractors (with some exceptions).
So a key threshold question on the bar is:
❓ Is this person an employee or an independent contractor?
This determines whether the principal or employer is liable for the torts of the other person.
📌 BASIC RULE:
A principal is vicariously liable for the torts of an employee committed within the scope of employment,
but generally not liable for the torts of an independent contractor.
✅ KEY DISTINCTION: Control Test
The main test is the “Right to Control” Test:
🧪 Ask: Who controlled how the work was done?
* If the employer/principal controls the manner, method, time, and means → the person is an employee
* If the person works independently, deciding how and when to complete the task → they’re an independent contractor
🔍 EMPLOYEE vs. INDEPENDENT CONTRACTOR – Comparison Table
Factor Employee Independent Contractor
Control Employer controls how work is done Worker controls how work is done
Supervision Regular oversight or micromanagement Works without day-to-day oversight
Tools/Workspace Uses employer’s tools or office Brings own tools/workspace
Hours Set by employer Sets own schedule
Duration Ongoing relationship Temporary/project-based
Payment Hourly/salary Paid per job or project
Benefits Gets benefits (insurance, vacation, etc.) No benefits
Tax Withholding Employer withholds taxes Worker files own taxes
Training Employer provides training Skilled and self-trained
⚠️ No single factor controls – courts look at the totality of the circumstances
📚 EXAMPLES – Spot the Difference
✅ Example 1: Delivery Driver on a Fixed Route
* The company assigns routes, sets hours, provides the van, and tracks performance
✅ Employee → company may be vicariously liable
❌ Example 2: Uber Driver
* Chooses own hours, uses own car, no supervision
❌ Independent Contractor (in most jurisdictions) → no vicarious liability for Uber unless exceptions apply
❌ Example 3: Plumber Hired for One Job
* Hired to fix a pipe, uses own tools, finishes job in 2 hours
❌ Independent Contractor → not controlled → principal not liable for plumber’s mistakes
✅ Example 4: Store Cashier
* Assigned shifts, trained by manager, uses store equipment
✅ Employee → employer is liable for torts in scope of work (like negligent restocking causing injury)
⚠️ NOTE: Exceptions Where Principal May Be Liable for Contractor’s Acts
Even if someone is an independent contractor, the principal might still be liable if:
* There’s a non-delegable duty (e.g., maintaining safe premises)
* The work involves inherently dangerous activities
* The principal was negligent in hiring/supervising the contractor
* The contractor acted under apparent authority
➡️ These are covered under alternative vicarious liability theories, discussed in a prior answer.
🧾 BAR EXAM CHECKLIST: Employee vs. Independent Contractor
Question Yes → No →
Does the principal/employer control how the person works (method + means)? ✅ Employee → vicarious liability possible ❌ Continue
Does the person work independently, choose own tools/schedule/methods? ❌ Less likely employee ✅ Independent contractor → no vicarious liability
Did the principal assign a one-time project, not a long-term job? ❌ Less likely employee ✅ Independent contractor
Did the principal provide training, tools, and supervision? ✅ More likely employee ❌ Suggests contractor
🧑⚖️ MODEL RULE STATEMENT – IRAC FORMAT
To determine whether a principal is vicariously liable for the torts of a worker, courts distinguish between employees and independent contractors.
A principal is generally liable for an employee’s torts committed within the scope of employment, but not liable for the torts of an independent contractor.
The key factor in this analysis is whether the principal had the right to control the manner and method by which the person performed their job.
The more control the principal exercises over how the work is done (not just the result), the more likely the worker is an employee. If the worker performs tasks independently, using their own tools, schedule, and methods, they are likely an independent contractor, and the principal is not vicariously liable for their torts.
Liability of Multiple Defendants – Joint and Several Liability
⚖️ Liability of Multiple Defendants – Joint and Several Liability
🧠 What’s the Core Idea?
When more than one defendant is responsible for causing a single injury, and the harm is indivisible (i.e., we can’t tell who caused which part), all defendants may be held fully liable under joint and several liability.
In simple terms:
✔️ Plaintiff can recover 100% of their damages from any one defendant
❌ The plaintiff can’t double dip, but can choose who to collect from
✔️ That defendant can then sue the others for contribution
✅ ELEMENTS OF JOINT AND SEVERAL LIABILITY (JSL)
Joint and several liability applies when:
1. There are multiple tortfeasors (defendants)
2. Each defendant’s conduct was a proximate cause of the harm
3. The injury is “indivisible” — meaning it’s not possible to determine which defendant caused which portion
🔁 What Happens Under Joint & Several Liability?
* Plaintiff: Can recover the entire judgment from any one of the defendants
* Defendant who pays more than their share: Can file a contribution action against the other defendants to recover the difference
* Plaintiff is not required to sue every tortfeasor at once
📌 CONTRIBUTION vs. INDEMNITY
Concept Definition Who uses it?
Contribution A defendant who pays more than their share of damages sues other defendants to be reimbursed for the excess Used among co-defendants
Indemnity A party who is only secondarily liable seeks to shift all responsibility to the primarily liable party Often used by employers or less-culpable parties
📚 EXAMPLES – Understanding JSL on the Bar
✅ Example 1: Indivisible Injury – Car Accident
D1 and D2 are racing their cars and collide with P, seriously injuring him.
It’s unclear who hit P’s car first or caused more damage.
* D1 and D2 both acted negligently ✔️
* P’s injuries are indivisible (can’t separate who caused what) ✔️
✅ Joint and several liability applies → P can collect 100% from either D1 or D2
✅ Example 2: Contribution Action
Following the example above:
* P recovers $100,000 from D1
* D1 believes he was only 30% at fault, and D2 was 70% at fault
➡️ D1 can file a contribution claim against D2 for $70,000
❌ Example 3: Divisible Injury – No JSL
D1 hits P’s car and causes a broken arm.
D2 hits P separately later that day, causing a leg injury.
* The injuries are separate and traceable to each defendant
❌ No joint and several liability → Each defendant is only liable for their own harm
🧾 BAR EXAM CHECKLIST: Joint & Several Liability
Step Question Yes → No →
1 Are there two or more defendants? Proceed JSL not applicable
2 Was each defendant a proximate cause of the harm? Proceed No JSL
3 Is the harm indivisible (cannot tell who caused which part)? ✅ JSL applies ❌ Only several liability applies
4 Did one D pay more than their fair share? ✅ Contribution allowed ❌ No contribution needed
📘 TYPES OF JURISDICTIONS ON BAR EXAM
Some jurisdictions on the MBE or essay portions may follow:
* Pure Joint & Several Liability: P can collect all damages from any one defendant
* Modified Systems: JSL applies only if D is more than 50% at fault
* Several Liability Only: Each defendant only pays their own share — no JSL
➡️ Always read the bar fact pattern carefully to see what type of jurisdiction you’re dealing with.
🧑⚖️ MODEL RULE STATEMENT – IRAC FORMAT
Under the doctrine of joint and several liability, when multiple defendants are the proximate cause of a single, indivisible harm, each defendant is liable for the entire amount of the plaintiff’s damages.
The plaintiff may recover the full amount from any one defendant, but is not entitled to a double recovery.
A defendant who pays more than their proportionate share may bring a claim for contribution against other liable defendants to recover the excess.
If the injury is divisible, then each defendant is liable only for the harm they individually caused.
Doctrines of Alternative Liability, Joint Enterprise, & Market
Share Liability
⚖️ Doctrines for Causation When Plaintiff Can’t Identify the Specific Defendant
🧠 Overview:
In traditional tort law, the plaintiff must prove which defendant caused the harm. But sometimes, the plaintiff is harmed by one of several negligent defendants, and it’s impossible to know which one.
In these situations, courts allow special doctrines to shift the burden of proof to defendants or allocate liability without specific causation:
✅ These doctrines allow one or more defendants to be held liable even when the plaintiff cannot prove exactly who caused the injury.
🔹 DOCTRINE 1: Alternative Liability
🔍 What It Means:
When all defendants were negligent, but we can’t tell which one caused the harm, all defendants may be held liable unless they prove otherwise.
✅ Elements:
Two or more defendants were negligent
The plaintiff can’t tell which one caused the injury
Only one of them could have caused the harm
The burden shifts to defendants to prove they weren’t the cause
🧠 Classic Example – Summers v. Tice:
Two hunters both negligently fire shotguns, and P is hit by a pellet.
Only one shot caused the harm, but it’s unclear whose
✅ Both hunters are held jointly liable unless they prove otherwise
🔹 DOCTRINE 2: Joint Enterprise (Joint Venture)
🔍 What It Means:
When multiple defendants are engaged in a joint enterprise, one defendant’s negligence is imputed to all others, even if only one committed the tort.
✅ Elements:
Two or more people engaged in a common plan or venture
They had an explicit or implied agreement
The tort occurred in furtherance of the enterprise
🧠 Bar Tip: Think of it like a business partnership or group activity with shared goals and mutual control.
🧠 Example:
Four college students take turns driving on a road trip. One drives negligently and causes a crash.
They are pursuing a joint venture
Liability for the crash may be imputed to all of them, even though only one was driving
🔹 DOCTRINE 3: Market Share Liability
🔍 What It Means:
Used in product liability cases where the plaintiff can’t identify which specific manufacturer made the product that caused the injury — but the products were identical/fungible.
Instead of dismissing the case, courts allocate liability among all defendants based on their share of the market at the time of injury.
✅ Elements:
All named defendants are potential tortfeasors
The products were fungible (i.e., same product, same risk)
The plaintiff can’t identify the manufacturer, but not due to their own fault
The plaintiff has sued substantially all manufacturers who made the product
🧠 Classic Example – DES drug cases:
Many companies made an identical drug (DES) that later caused birth defects.
Plaintiffs couldn’t prove which company’s pill was taken by their mothers
✅ Courts allocated damages based on market share, not proof of actual causation
📚 SUMMARY COMPARISON TABLE
Doctrine When It Applies Key Requirements Liability Outcome
Alternative Liability Multiple negligent Ds, unclear which caused harm All Ds negligent, only one caused injury, burden shifts to Ds All negligent Ds are jointly liable unless they prove otherwise
Joint Enterprise Group acting together in a shared tortious venture Common purpose + agreement + mutual control Each D liable for acts of any other
Market Share Liability Plaintiff injured by fungible product, cannot ID manufacturer Identical product, inability to ID not P’s fault, most manufacturers joined Each D liable based on market share %
🧾 BAR EXAM CHECKLIST
Question Doctrine Result
Can’t tell which of two negligent defendants caused the harm? ✅ Alternative Liability All liable unless they prove otherwise
Were the defendants acting together in a joint mission with shared control? ✅ Joint Enterprise Each is liable for acts of the other
Plaintiff injured by product, but can’t ID which manufacturer made it? ✅ Market Share Liability Manufacturers liable based on market share
🧑⚖️ MODEL RULE STATEMENTS – IRAC STYLE
🔹 Alternative Liability – Rule Statement
Under the doctrine of alternative liability, when multiple defendants acted negligently, but it is unclear which one caused the plaintiff’s injury, all defendants may be held jointly and severally liable, unless they can prove they did not cause the harm.
This doctrine shifts the burden of proof to the defendants to avoid liability.
🔹 Joint Enterprise – Rule Statement
Under the doctrine of joint enterprise, when two or more defendants engage in a common venture or explicit or implied agreement, the negligence of one is imputed to all. Each member of the enterprise may be held liable for torts committed by the others in furtherance of the joint venture.
🔹 Market Share Liability – Rule Statement
Under the doctrine of market share liability, a plaintiff may recover from multiple manufacturers of a fungible defective product when it is impossible, through no fault of the plaintiff, to identify the specific manufacturer responsible.
Liability is apportioned according to each manufacturer’s share of the relevant market during the time period of the injury.
Strict Products Liability
⚖️ Strict Products Liability – Bar Exam Breakdown
🧠 What Is Strict Products Liability?
Under strict products liability, a commercial seller is liable for injuries caused by a defective product, regardless of fault or negligence.
This means the plaintiff does not need to prove that the manufacturer or seller did anything wrong — just that the product was defective and caused harm.
✅ ELEMENTS OF STRICT PRODUCTS LIABILITY
To recover under strict products liability, a plaintiff must show:
1. ✅ The product was defective (based on one of three types of defects: manufacturing, design, or failure to warn)
2. ✅ The product was defective when it left the defendant’s control
3. ✅ The product was not substantially altered when it reached the plaintiff
4. ✅ The product caused injury during a reasonably foreseeable use (intended or unintended)
5. ✅ The defendant is a commercial supplier of that type of product (not a casual seller)
📌 Privity is NOT required → You don’t have to be the purchaser to sue under strict products liability
📌 Only personal injury or property damage can be recovered — not pure economic loss
🔍 THE THREE TYPES OF DEFECTS
🔹 1. Manufacturing Defect
The product doesn’t match its intended design — something went wrong in production
✅ Elements:
* The product deviated from the manufacturer’s intended specifications
* The product is more dangerous than if it were made properly
🧠 Example:
A soda bottle explodes because it was sealed improperly during manufacturing.
✅ That’s a manufacturing defect
🧠 Food Example:
If a peanut butter jar has shards of glass, and the consumer wouldn’t expect that → it’s a defect, even if other jars were fine.
🔹 2. Design Defect
The product was made exactly as intended, but the design itself is unreasonably dangerous
✅ Elements:
* There’s a safer, practical, and cost-effective alternative design
* The product’s risks outweigh its benefits
🧠 Example:
A car model is designed without side airbags, even though installing them would be cheap and prevent injury.
✅ That’s a design defect
🧠 Bar Tip: This is judged using a risk-utility test:
* Is there a reasonable alternative design?
* Would that design be safer, feasible, and not too expensive?
* Would it still serve the same utility?
🔹 3. Failure to Warn (a.k.a. Warning Defect)
The product is dangerous in foreseeable uses, but the manufacturer failed to give adequate warnings
✅ Elements:
* There was a non-obvious risk
* The manufacturer knew or should’ve known about the risk
* The warning was absent or inadequate to inform the user
🧠 Example:
A power saw has a tendency to kick back, but the manual doesn’t mention it.
✅ That’s a failure to warn
🧠 The warning must be:
* Clear
* Proportional to the danger
* Effective for the ordinary user
📚 CLASSIC BAR EXAMPLES
✅ Manufacturing Defect
A batch of pressure cookers is assembled with defective seals that explode during use.
➡️ Even though the design was safe, the defect in assembly = strict liability
✅ Design Defect
A children’s toy has small detachable parts that can choke toddlers. A safer, cheap redesign is available.
➡️ Design is unreasonably dangerous = strict liability
✅ Failure to Warn
A medication causes severe liver damage in rare cases, but this is not included on the label.
➡️ Failure to warn of known, non-obvious risk = strict liability
❌ Economic Loss Only (NO strict liability)
A toaster fails to work and must be replaced, but it never injures anyone or damages anything else.
➡️ ❌ No personal injury or property damage = no strict liability claim
🧾 BAR EXAM CHECKLIST – Strict Products Liability
Step Question Yes → No →
1 Was the product defective? Move to next step ❌ No liability
2 Did the defect exist when it left the seller’s hands? Move to next step ❌ No liability
3 Was the product unsubstantially altered when it reached the plaintiff? Move to next step ❌ No liability
4 Was the product being used in a foreseeable way (even if unintended)? Move to next step ❌ No liability
5 Is the defendant a commercial seller? ✅ Strict liability applies ❌ No strict liability
🧑⚖️ MODEL RULE STATEMENT – IRAC FORMAT
Under the doctrine of strict products liability, a commercial seller is liable for harm caused by a defective product, regardless of fault.
To prevail, the plaintiff must prove that:
(1) the product was defective (by manufacturing defect, design defect, or failure to warn);
(2) the defect existed when the product left the defendant’s control;
(3) the product was not substantially altered before reaching the plaintiff;
(4) the product was being used in an intended or foreseeable manner; and
(5) the defendant is a commercial supplier of such goods.
Privity is not required. Recovery is available for personal injury or property damage, but not for pure economic loss.
MEE TIP
Three primary theories are
available to hold a defendant
liable for a product that causes
harm: (1) Strict Products
Liability; (2) Negligence; and
(3) Breach of Warranty. If an
essay question does not specify
or point to which theory applies,
then you must analyze the issues
under ALL three products liability
theorie
Definition of Commerical Supplier
⚖️ Definition of Commercial Supplier – Strict Products Liability
🧠 Why It Matters:
In order to bring a strict products liability claim, the defendant must be a commercial supplier of the defective product.
❗ Strict liability does NOT apply to casual sellers, service providers, or individual sellers who are not regularly in the business of selling that type of good.
✅ WHO IS A COMMERCIAL SUPPLIER?
A commercial supplier is any person or business that:
1. Routinely sells, distributes, or markets products of the type that caused the injury
2. Is engaged in the business of selling or distributing such goods — not a one-time or casual seller
3. Is in the chain of distribution (manufacturer, wholesaler, distributor, or retailer)
📌 You do NOT need to prove privity (i.e., the injured person doesn’t have to be the purchaser or in a contract with the supplier).
🧾 Examples of Commercial Suppliers:
* ✅ A manufacturer of kitchen appliances
* ✅ A wholesaler who supplies those appliances to stores
* ✅ A retail store that sells the appliances to customers
* ✅ A distributor of pharmaceutical drugs
* ✅ An online store regularly selling the product in question
➡️ All of the above are subject to strict products liability if the product is defective and causes injury
❌ WHO IS NOT A COMMERCIAL SUPPLIER?
Casual or incidental sellers and service providers are not liable under strict products liability.
❌ Examples of Non-Suppliers:
* ❌ A neighbor selling a used lawnmower at a garage sale
* ❌ A friend selling a used car on Craigslist
* ❌ A doctor, plumber, or mechanic whose main job is providing a service, not selling products
* ❌ A repair shop that installs a defective part but didn’t design or sell it as a product
➡️ These individuals are not in the business of selling the product that caused harm → no strict liability
⚖️ Service Providers vs. Product Sellers
Sometimes the line between service provider and product seller can blur — courts will look at the primary purpose of the transaction:
* If it’s mainly to perform a service → ❌ no strict liability
* If it’s mainly to sell a product → ✅ strict liability may apply
🧠 Example:
A dentist installs a defective dental implant.
* Court will ask: Was this primarily a medical service, or was the implant itself the main product?
* If it’s mostly service → no strict liability
🧾 BAR EXAM CHECKLIST – Who’s a Commercial Supplier?
Question Yes → No →
Does the person or business routinely sell the type of product? ✅ Commercial supplier → strict liability possible ❌ Not a commercial supplier
Was the product sold as part of a service (e.g., surgery, repair)? ❌ If service is dominant → no strict liability ✅ If product dominates → strict liability may apply
Is the defendant a manufacturer, retailer, or distributor? ✅ Strict liability applies ❌ Not in distribution chain
Is there privity with the plaintiff? Doesn’t matter → strict liability still applies N/A
📘 BAR TIP: Chain of Distribution Rule
Anyone in the commercial distribution chain is liable — even if they didn’t manufacture the product.
So even if you sue the retail store, not the manufacturer, the store is still strictly liable if it sold you the defective product.
🧑⚖️ MODEL RULE STATEMENT – IRAC STYLE
In a strict products liability case, the defendant must be a commercial supplier.
A commercial supplier is any person or entity who is engaged in the business of selling goods of the type that caused the injury.
This includes manufacturers, wholesalers, distributors, and retailers, regardless of whether the plaintiff was the purchaser or had privity.
A person who casually sells a product, or who primarily provides a service (such as a doctor or plumber), is not a commercial supplier, and strict liability will not apply.
