This guide focuses on library and internet resources for researching or studying torts for the NextGen bar exam. Secondary sources, such as torts texts & treatises are included. You will also find suggested print or online study aids. If you have any questions about locating these materials, please ask a law librarian, we are here to help.
Topics in this outline will be tested using tasks from the Foundational Skills outline. Questions may test topics from more than one subject area.
Examinees may expect that some questions will be presented with legal resources. When legal resources are provided within the test, the examinee will be expected to demonstrate their ability to efficiently analyze and apply the legal resources to answer the question or questions.
If a particular topic’s scope is described in this outline, that does not indicate greater importance or
testing frequency of the topic.
Within this outline, there are two types of topics:
Topics with a star symbol * Topics followed by a star symbol require an examinee to rely solely on recalled knowledge and understanding of the topic; they will be tested without provision of legal resources.
Topics without a star symbol Topics without a star symbol may be tested with or without provision of legal resources. When these topics are tested without legal resources, the examinee is expected to rely on recalled knowledge and understanding that will enable the examinee to demonstrate recognition that the topic is at issue in the fact scenario.
I. Intentional torts
A. Harms to the person
This topic includes all elements of each intentional tort, including the defendant’s act, intent
(including knowledge to a substantial certainty, transferred intent, the distinction between
intent and motive, and who can form intent [e.g., minor children]), causation, and harm/damages (as required).
1. Assault*
2. Battery*
3. False imprisonment*
4. Intentional infliction of emotional distress*
B. Interference with property interests
1. Trespass to land *
2. Trespass to chattels*
3. Conversion *
C. Defenses to intentional torts
1. Consent *
This topic includes distinctions among different types of consent (e.g., actual vs.
apparent), when an action exceeds the scope of the consent, when consent is validly
given, and when consent is unnecessary (e.g., life-saving surgery on an unconscious
injured party with no available representative).
2. Other defenses to intentional torts
This topic includes self-defense, defense of others, defense of property, recapture of chattels (including the shopkeeper’s privilege), public and private necessity, parental discipline, and privilege of arrest in the context of law enforcement activity.
II. Negligence
A. Duty of care to foreseeable and unforeseeable plaintiffs
1. Duty to control third persons *
2. Duty to act when previous actions exacerbate a risk of harm *
3. Duty of owners and occupiers of land
This topic includes distinctions between natural and artificial conditions on land, as well as duties owed to entrants and passersby (under both the traditional and modern approaches).
4. Duty to avoid unreasonable risk of causing emotional distress
This topic includes “zone of danger” requirements and exceptions for “bystander” cases, requirements related to physical symptoms of distress, special relationships between the parties, and negligent reporting of a family member’s death.
B. Standard of care
1. The reasonably prudent person and the standards applied to children, physically and mentally impaired individuals, professionals, and persons acting in emergency situations*
2. Rules of conduct derived from statutes; relevance of custom *
This topic includes the requirements for negligence per se (e.g., the plaintiff is within the class of people the statute was designed to protect, the incident resulting in injury was the type of injury that the statute aimed to prevent), how the use of negligence per se affects the plaintiff’s case, the defendant’s use of a statute to defend against a negligence claim, and how this use of a statute affects the defendant’s case. This topic also includes the relevance of custom in establishing the standard of care, the weight to be given to statutes and customs when they are used to establish standards of care, and the use of rebuttal evidence by the opposing party.
C. The use of direct and circumstantial evidence to prove fault, including res ipsa loquitur *
This topic includes the use of direct evidence, the use of circumstantial evidence, and the conditions for the use of res ipsa loquitur (e.g., the incident was the type of incident that does not ordinarily occur without someone having been negligent, the harm was caused by an instrumentality under the exclusive control of the defendant).
D. Actual causation *
This topic includes the but-for test, the substantial factor test, multiple necessary causes, and multiple sufficient causes.
E. Proximate causation *
This topic includes the “scope of the risk” test, as well as intervening and superseding causes.
F. Liability for acts of others
This topic includes parental responsibility for the negligence of minor children and the exception for nondelegable duties. See also Business Associations II. Vicarious liability of principal for acts of agents.
G. Pure and modified comparative negligence *
H. Express assumption of risk
III. Common-law strict liability for abnormally dangerous activities and defenses to such claims
This topic includes the common types of abnormally dangerous activities and who may sue, the use of comparative negligence as a defense, and the common test that the harm must arise from the risk that made the activity abnormally dangerous.
IV. Products liability based on the design, manufacture, and distribution of products and defenses to such claims
This topic includes the different theories of liability in products liability cases, the different types of defects (manufacturing defect, design defect, and failure to warn), who may sue, who may be sued, the defenses of alteration and misuse, and foreseeable misuse.
V. Nuisance and defenses to such claims
A. Private nuisance *
This topic includes the elements of private nuisance (e.g., unreasonable interference with another’s use and enjoyment of land), the locality rule for determining when an interference is unreasonable, and the distinctions between private nuisance, trespass, and public nuisance.
B. Public nuisance
VI. Misrepresentation and defenses to such claims
A. Fraudulent misrepresentation
B. Negligent misrepresentation
VII. Damages
A. Apportionment of responsibility among multiple tortfeasors
This topic includes joint and several liability and apportionment of responsibility and damages among tortfeasors.
B. Categories of damages recoverable in tort actions
This topic includes the availability and proper roles of compensatory damages (general and special, e.g., medical expenses, pain and suffering, emotional distress, property damage, loss of enjoyment, loss of consortium), punitive damages, and nominal damages in tort actions. This topic also includes the “thin skin” rule, failure to mitigate, attorney’s fees, and statutory limitations on recovery.