Torts Essentials — Bar Exam

On the MBE the fight is almost always over a single element, not all four — the call-of-the-question and answer choices tell you which. When a statute is in play, look for negligence per se: an unexcused violation of a safety statute conclusively establishes duty and breach if the plaintiff is in the protected class and the harm is the type the statute meant to prevent — but the plaintiff still must prove causation and damages, so a choice saying the violation alone wins is wrong. Where direct proof of breach is missing, res ipsa loquitur lets breach be inferred when the harm ordinarily results from negligence; the traditional test also demands the instrumentality be in the defendant’s exclusive control (the Restatement (Third) relaxes this to a “class of actors” likely responsible — most MBE answers still use exclusive control).

The classic trap is mixing up the elements: breach is the standard-of-care question, distinct from duty (the Palsgraf foreseeable-plaintiff fight) and from proximate cause — i.e., scope of liability. Foreseeability lives in both duty and proximate cause; don’t let one swallow the other. And damages are required — negligence, unlike many intentional torts, has no nominal-damages shortcut.

MBE fact patterns love the delayed or indirect contact — D sets a trap, poisons food, or yanks a chair, and P is hurt seconds or hours later. Battery covers any force D sets in motion; the contact need not be direct or instantaneous, so it beats assault here because P often never sees it coming. Watch the single-intent vs. dual-intent split: the majority (and the Restatement (Third)) require only intent to make the contact, not intent that it be harmful or offensive — a minority “dual-intent” line, e.g. White v. Muniz, demands both, but pick single-intent on the MBE.

The classic trap is choosing assault when no apprehension exists: a sleeping or unaware plaintiff can be battered but never assaulted. Mind the transferred-intent overlap too — intent to commit assault that ripens into contact still grounds battery. And keep battery off land: an object you send onto another’s realty is trespass to land, not battery, because battery protects the body, not the ground. Hook: assault is the threat, battery is the touch.

MBE fact patterns hide the issue in two spots: apprehension is not fear — a confident plaintiff who could easily fend off a scrawny attacker still has a valid claim because apprehension means expectation of contact, not fright. The other tell is the “unloaded gun” trap: if the plaintiff reasonably believes the gun is loaded, the defendant’s secret inability to fire is irrelevant — apparent ability controls, not actual ability. The apprehension must be of contact to the plaintiff’s own body; fearing a contact aimed at a third party (even a family member) is not assault to the bystander.

The classic confusion is assault vs. battery: assault protects the mind (apprehension), battery protects the body (contact), so an unperceived blow from behind is battery but not assault — no apprehension. Both are intent-to-act torts, and transferred intent flows freely among them (and the other three: false imprisonment, trespass to land, trespass to chattels). Don’t confuse this personal tort with trespass to land, an entry-based property tort. Memory hook: assault = anticipation, battery = blow.

On the MBE the tell is an entry that causes no actual damage yet still lets the plaintiff recover — that signals trespass, because the entry itself is the wrong. Watch the intent trap: the defendant need only intend the act of entering a particular spot, so a hiker who reasonably believes the land is his still trespasses, and transferred intent runs across the five trespassory torts (battery, assault, false imprisonment, trespass to land, trespass to chattels). A non-physical invasion — odors, light, vibrations — is the cue to switch to nuisance (a modern minority lets settling particulates be trespass, but then demands proof of actual harm).

The classic confusion is land versus chattel. Interference with a physical object is trespass to chattels or conversion, graded by the seriousness of interference — conversion is serious enough to force a full-value buyout, never trespass to land. Students also wrongly demand “unreasonable” conduct — that substantial-and-unreasonable test belongs to nuisance. Memory hook: trespass = the line, nuisance = the air — cross the boundary versus poison the enjoyment.

The classic MBE pattern hands you a borrowed or mistakenly-taken chattel and asks you to choose the remedy, not just label the tort. The “tell” is a phrase signaling severity: the defendant destroyed, sold, kept it for months, or refused to return it. That degree of interference points to conversion and a forced sale — the defendant pays as if he bought it. Lesser meddling (a brief move, a short use, a dent) stays trespass to chattels. Watch for good-faith mistake: it is no defense, because conversion is intentional only as to the act of dominion, not as to any wrong or as to who actually owns the chattel.

Students confuse conversion with trespass to land — but land cannot be converted; only tangible personal property qualifies, plus intangibles merged in a document (a stock certificate, promissory note, or bond). Keep conversion’s full-value recovery distinct from ordinary compensatory damages like lost wages or pain and suffering. Memory hook: conversion “converts” the defendant into a buyer — he pays full price and keeps the goods.

The MBE’s favorite trap is the constitutional overlay: whenever the statement touches a matter of public concern, the plaintiff must additionally prove falsity and fault, and even a private figure cannot recover presumed or punitive damages without showing actual malice (Gertz v. Robert Welch). The “tell” is the plaintiff’s identity and the topic — read for whether the call is private-figure/private-concern (common-law rules, including liability without proof of fault, survive) versus public. Separate the fault question (negligence vs. actual malice) from the damages question; the answer often hinges on the damages limit, not on liability.

Don’t fold defamation’s damages scheme into ordinary tort damages. Causation here just means publication — the statement reached a third party; even an overheard remark qualifies. Classic trap: a statement of opinion that implies undisclosed defamatory facts is actionable (Milkovich); only “pure” opinion that implies no provable fact is protected.

The MBE tests nuisance most often by daring you to pick trespass instead. The tell is the type of invasion: a physical, tangible entry (a person, a flooding stream, dumped rubble) is trespass, protecting exclusive possession; an intangible interference (odors, noise, smoke, vibration, light) is nuisance, protecting use and enjoyment. The same conduct can support both, so a smell or sound plus a “substantially interferes” cue points to nuisance. Watch the standing twist: a non-possessor (guest, employee) has no private-nuisance claim, because the tort requires a possessory or proprietary interest in the land.

The classic trap is assuming the most-injured plaintiff wins — but liability turns on unreasonableness. Beware the inverse trap too: lawful conduct is not automatically a defense, so zoning compliance or high social value does not insulate a defendant when the harm is serious. On remedy, where an injunction would cost vastly more than the harm, a court may deny the injunction and award permanent damages (Boomer v. Atlantic Cement). Hook: tangible = trespass, intangible = nuisance.

The MBE almost always splits causation into its two separate prongs and makes you spot which one fails. The classic “tell”: the defendant clearly breached, yet an answer says “not liable” — the trap is whether you fault cause-in-fact (would the harm have happened anyway?) or proximate cause (was this harm and this plaintiff within the foreseeable risk?). Under proximate cause, foreseeability of the type and manner of harm controls — but the extent need not be foreseeable, because the eggshell-skull rule takes the plaintiff as found. (The Restatement (Third) reframes proximate cause as “scope of liability” — harm within the risk that made the conduct tortious — though most bar answers still use the foreseeability vocabulary.)

Students conflate causation with the other elements. Breach is about conduct; causation is about consequences — a defendant can drive recklessly yet escape liability if a freak event, not the speeding, produced the crash. Don’t confuse it with damages, which asks how much, not whether the act caused the injury. Memory hook: “but-for” tests connection, “proximate” tests fairness. Foreseeable intervening forces (rescuers, ordinary negligence, subsequent medical malpractice) are dependent and keep the chain intact; superseding causes — the unforeseeable or extraordinary ones — cut it off.

The MBE rarely asks “are there damages?” outright; it tests the doctrines that shrink the award. Watch for a plaintiff who skips physical therapy or refuses reasonable recommended treatment — that triggers the avoidable-consequences (mitigation) rule, which bars only the incremental harm reasonable effort could have avoided, not the whole claim (reasonableness of a refusal is a jury question). Another favorite is the collateral-source rule: payments from the plaintiff’s own insurer don’t reduce the defendant’s liability, so the choice deducting them is wrong (many states have modified this by statute). The eggshell-skull plaintiff is the recurring trap — you take the victim as you find them, so an unforeseeable extent of harm is fully recoverable, even though proximate cause limits unforeseeable types of harm.

Don’t confuse damages with causation: causation links the act to the injury, while damages measures it — and a foreseeable injury can still yield reduced recovery through mitigation. The negligence-specific trap: unlike most intentional torts, negligence allows no nominal damages, so without actual loss the prima facie case fails.

Duty is a question of law for the judge, so MBE stems often turn on whether any duty existed at all — the classic tell is a defendant who failed to act (nonfeasance). The default rule is no duty to rescue or aid a stranger; the answer flips only if a recognized special relationship, the defendant’s own negligent or even innocent creation of the peril, or a voluntarily undertaken rescue (which must then be performed non-negligently) supplies one. Watch for the rescue doctrine (“danger invites rescue”) treating injured rescuers as foreseeable plaintiffs — and, conversely, for the firefighter’s rule, which in most jurisdictions bars public-safety officers from suing for the very risk they were hired to confront.

Do not conflate duty’s foreseeability-of-the-plaintiff inquiry (Palsgraf) with proximate cause’s foreseeability-of-the-harm inquiry — they sound identical but test different elements, and a tempting wrong answer rephrases one as the other. Likewise, duty asks whether a standard applies; breach asks whether the defendant fell below it. Memory hook: duty is the “whether,” breach is the “how badly.”