Memory tricks for negligence, intentional torts & strict liability
Tort law is civil liability for wrongful acts — no contract required. From the four elements of negligence to the full list of intentional torts to strict liability for ultrahazardous activities, these memory tricks give you a reliable framework for every tort question on your exam.
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Negligence
DBCA
Duty · Breach · Causation · Actual damages
The 4 Elements of Negligence
Every negligence claim requires all four elements — miss one and the claim fails. DBCA: Defendant owed a Duty of care · Breached that duty · Causation (actual + proximate) · Actual damages resulted. No harm = no negligence claim, even if defendant was careless.
Duty
Reasonable person standard — defendant must act as a reasonably prudent person would under the circumstances.
Breach
Failure to meet the standard of care. Hand formula (B<PL): breach if burden of precaution is less than probability × magnitude of loss.
Causation
Two-part test: Actual cause (but-for test) AND proximate cause (foreseeable harm, no superseding cause).
Damages
Must be actual, concrete harm — physical, financial, or emotional. Negligence per se: violation of statute = automatic breach.
Intentional torts require a deliberate act — not negligence. ABCDEFFT covers the major ones tested on every intro law exam. Unlike negligence, intent to cause the act (not necessarily the harm) is enough. Transferred intent applies across most of these.
Assault
Intentional act causing reasonable apprehension of imminent harmful contact. No physical contact required.
Battery
Intentional harmful or offensive contact with another person. Contact need not cause injury — an unwanted kiss is battery.
Conversion
Intentional interference with another's personal property so serious it warrants full value — essentially forced sale.
Defamation
False statement of fact, published to a third party, causing harm to reputation. Libel (written) vs. slander (spoken).
False imprisonment
Intentional confinement of a person without consent or legal authority. Must be aware of or harmed by confinement.
IIED
Intentional Infliction of Emotional Distress — extreme and outrageous conduct causing severe emotional distress.
Strict liability holds defendants liable without any proof of negligence or intent. AWD covers the three main categories: abnormally dangerous activities (blasting, storing explosives) · wild animals · defective products (products liability). Engage in these — you pay if harm results.
Abnormally dangerous
Rylands v. Fletcher rule — activities with high risk of serious harm that can't be eliminated with care. Blasting, fumigation, nuclear material.
Wild animals
Owners of wild animals (lions, bears, exotic pets) are strictly liable for any harm caused. Domestic animals: one-bite rule in most states.
Defective products
Products liability — manufacturer/seller liable for defective design, manufacturing defect, or failure to warn. Restatement §402A.
No fault needed
Plaintiff need only prove the activity, the defect, or the animal ownership — plus causation and damages. No negligence required.
Defamation
FPATH
False · Published · About plaintiff · To a third party · Harm to reputation
Elements of Defamation — Public vs. Private Figures
FPATH covers defamation's core elements. Critical distinction: public figures (celebrities, politicians) must prove actual malice (NYT v. Sullivan) — knowledge of falsity or reckless disregard. Private figures only need negligence. Truth is an absolute defense.
False
Must be a false statement of fact — not opinion. "I think he's dishonest" is opinion; "He stole $1,000" is a factual claim.
Published
Communicated to at least one person other than the plaintiff. Repeating a defamatory statement is also publication.
Actual malice
NYT v. Sullivan (1964) — public figures must prove defendant knew statement was false or acted with reckless disregard for truth.
Libel vs. slander
Libel (written/broadcast) — damages presumed in some states. Slander (spoken) — must prove actual damages unless slander per se (crime, STD, job, sexual misconduct).
Causation
BUT-FOR + FORESEEABLE
Actual cause (but-for test) · Proximate cause (foreseeability)
Two-Part Causation — Actual and Proximate
Causation has two gates a plaintiff must pass through. Actual cause: but for the defendant's act, would the harm have occurred? Proximate cause: was the type of harm foreseeable? Superseding causes — unforeseeable intervening acts — can break the chain and relieve defendants of liability.
But-for test
But for defendant's act, plaintiff would not have been harmed. Fails if harm would have occurred anyway (concurrent causes use substantial factor test).
Proximate cause
Was the plaintiff's injury a foreseeable result of defendant's negligence? Palsgraf v. Long Island Rail Road — liability limited to foreseeable plaintiffs.
Superseding cause
An unforeseeable intervening act that breaks the causal chain — relieves original defendant of liability. Criminal acts of third parties often qualify.
Eggshell plaintiff
"Take your victim as you find them" — defendant liable for full extent of harm even if plaintiff had unusual vulnerability. Causation still required.
CRAVE covers defenses a negligent defendant can raise. Most states use comparative fault (pure or modified) — reducing plaintiff's award by their percentage of fault. Contributory negligence (old rule, still in 4 states) bars recovery entirely if plaintiff was even 1% at fault.
Contributory negligence
Old common law rule — plaintiff's own negligence, however slight, bars all recovery. Still used in MD, VA, NC, AL, DC.
Comparative fault
Pure: plaintiff recovers even if 99% at fault (reduced). Modified: plaintiff barred if 50% or 51%+ at fault (majority rule).
Assumption of risk
Plaintiff knowingly and voluntarily encountered a known risk. Express (signed waiver) or implied (spectator at baseball game).
Volenti non fit injuria
"To a willing person no injury is done" — Latin for assumption of risk. Complete defense in contributory negligence states.
Products liability holds manufacturers, distributors, and sellers strictly liable for defective products. DMW covers the three defect types: Design (the whole product line is dangerous) · Manufacturing (one unit deviated from the design) · Warning (adequate instructions or warnings were missing).
Design defect
The entire product line is unreasonably dangerous. Tests: consumer expectation (ordinary consumer) or risk-utility (was safer design feasible?).
Manufacturing defect
A specific unit deviated from the intended design during production — the blueprint was fine, the execution wasn't.
Failure to warn
Product had non-obvious risks that manufacturer failed to disclose. Learned intermediary doctrine: pharma companies warn doctors, not patients directly.
Who can be sued
Entire supply chain: manufacturer, distributor, retailer. Plaintiff need not be the buyer — bystanders can recover too.
Damages
CESP
Compensatory · Economic · Special · Punitive
Types of Tort Damages
Unlike contract law, tort damages can include punitive awards. CESP: Compensatory (make plaintiff whole) · Economic/Special damages (medical bills, lost wages — calculable) · Non-economic/General damages (pain and suffering, emotional distress) · Punitive damages (egregious/malicious conduct only).
Special damages
Quantifiable economic losses — medical expenses, lost wages, future earnings, property damage. Must be specifically pleaded.
General damages
Non-economic losses — pain and suffering, loss of consortium, emotional distress, disfigurement. No precise calculation.
Punitive damages
Awarded to punish and deter — only when defendant's conduct was malicious, fraudulent, or oppressive. Due process limits ratio vs. compensatory.
Nominal damages
Token award (e.g., $1) when a legal right was violated but no actual harm occurred. Common in intentional tort cases.
Defenses to Int. Torts
SCND
Self-defense · Consent · Necessity · Defense of others/property
Defenses to Intentional Torts
Intentional tort defendants have powerful defenses. SCND: Self-defense (reasonable force to protect yourself) · Consent (plaintiff agreed) · Necessity (public or private — destroy property to prevent greater harm) · Defense of others and defense of property. Force must always be proportionate.
Self-defense
May use reasonable force to prevent imminent harmful contact. Deadly force only if reasonable belief of deadly threat. No duty to retreat in most states.
Consent
Express or implied consent negates most intentional torts. Participants in contact sports impliedly consent to ordinary contact. Consent obtained by fraud is invalid.
Necessity
Public necessity (destroy property to save many) — complete defense, no liability. Private necessity (save yourself) — partial defense, must pay for damage caused.
Defense of property
Reasonable non-deadly force to protect property. Spring guns and deadly mechanical devices to protect property alone are NOT permitted (Katko v. Briney).