Torts Subject Matter Outline

NOTE: Examinees are to assume that survival actions and claims for wrongful death are available. Joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated. Approximately half of the Torts questions on the MBE will be based on category II, and approximately half will be based on the remaining categories -- I, III, and IV.

1. Intentional torts
   1. Harms to the person, such as assault, battery, false imprisonment, and infliction of mental distress; and harms to property interests, such as trespass to land and chattels, and conversion
   2. Defenses to claims for physical harms
      1. Consent
      2. Privileges and immunities: protection of self and others; protection of property interests; parental discipline; protection of public interests; necessity; incomplete privilege
2. Negligence
   1. The duty question, including failure to act, unforeseeable plaintiffs, and obligations to control the conduct of third parties
   2. The standard of care
      1. The reasonably prudent person: including children, physically and mentally impaired individuals, professional people, and other special classes
      2. Rules of conduct derived from statutes and custom
   3. Problems relating to proof of fault, including res ipsa loquitur
   4. Problems relating to causation
      1. But for and substantial causes
      2. Harms traceable to multiple causes
      3. Questions of apportionment of responsibility among multiple tortfeasors, including joint and several liability
   5. Limitations on liability and special rules of liability
      1. Problems relating to “remote” or “unforeseeable” causes, “legal” or “proximate” cause, and “superseding” causes
      2. Claims against owners and occupiers of land
      3. Claims for mental distress not arising from physical harm; other intangible injuries
      4. Claims for pure economic loss
   6. Liability for acts of others
      1. Employees and other agents
      2. Independent contractors and nondelegable duties
   7. Defenses
      1. Contributory fault, including common law contributory negligence and last clear chance, and the various forms of comparative negligence
      2. Assumption of risk
3. Strict liability and products liability: common law strict liability, including claims arising from abnormally dangerous activities, and defenses to such claims; claims against manufacturers and other defendants arising out of the manufacture and distribution of products, and defenses to such claims
4. Other torts
   1. Claims based on nuisance, and defenses
   2. Claims based on defamation and invasion of privacy, defenses, and constitutional limitations
   3. Claims based on misrepresentations, and defenses
   4. Claims based on intentional interference with business relations, and defenses