The ABCs of: Torts

Here is a collection of 26 important concepts, from A to Z, you need to know about Torts for the bar exam. (For an A-to-Z list of negligence-specific concepts, check out “The ABCs of: Negligence.")

A – Assault: Assault occurs when the defendant’s intentional act causes the plaintiff to experience a reasonable apprehension of immediate harmful or offensive contact. The act must be intentional, and the plaintiff’s apprehension must be reasonable, even if contact does not ultimately occur.

BONUS: A – Appropriation of Plaintiff’s Picture or Name: Appropriation of the plaintiff’s picture or name is a privacy tort that arises when the defendant uses the plaintiff’s likeness or name for their own commercial advantage without permission. This tort protects individuals from unauthorized exploitation of their identity.

BONUS: A – Abnormally Dangerous Activity: Abnormally dangerous activities involve conduct that creates a high degree of risk of serious harm that cannot be eliminated by the exercise of reasonable care. Examples include using explosives or keeping wild animals. Defendants engaged in such activities are strictly liable for any resulting harm, as the inherent danger justifies imposing liability without fault.

B – Battery: Battery is the intentional infliction of harmful or offensive contact with another’s person without consent. Intent can be specific (intent to cause harm) or general (substantial certainty that harm will occur). Physical harm is not required as long as the contact is offensive to a reasonable sense of dignity.

C – Conversion: Conversion occurs when the defendant intentionally exercises control over the plaintiff’s personal property, substantially interfering with the plaintiff’s possessory rights. Remedies include damages for the full value of the property at the time of conversion or its return.

BONUS: C – Consent: Consent is a defense to intentional torts, such as battery and trespass, where the plaintiff agrees to the defendant’s conduct. Consent can be express, given explicitly through words or writing, or implied from conduct or circumstances. However, consent obtained through fraud, duress, or misrepresentation is invalid.

D – Defamation: Defamation occurs when the defendant makes a false statement of fact that harms the plaintiff’s reputation. In tort defamation, the focus is on protecting an individual’s reputation without considering constitutional constraints. Private individuals must demonstrate that the defendant was at least negligent in making the false statement, while public figures or officials must show actual malice—that the statement was made with knowledge of its falsity or reckless disregard for the truth.

BONUS: D – Disclosure of Private Facts: Disclosure of private facts is a privacy tort where the defendant publicly discloses true but private information about the plaintiff, causing embarrassment or distress. The information must not be of legitimate public concern.

BONUS: D – Defects in Products Liability: Defects in products liability are categorized into three primary types:

Manufacturing Defects: These occur when a product deviates from its intended design, making it more dangerous than consumers reasonably expect.

Design Defects: These involve flaws in the product’s overall design that render it unreasonably dangerous, even when manufactured correctly. Courts often apply the risk-utility test or consumer expectations test to evaluate liability.

Failure to Warn (Marketing Defects): This arises when a product lacks adequate warnings or instructions to inform consumers of potential risks associated with its use.

Each type of defect ensures that products meet safety standards and provides avenues for injured parties to recover damages.

E – Emotional Distress: Intentional infliction of emotional distress (IIED) requires extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to the plaintiff. The conduct must go beyond all possible bounds of decency and be regarded as atrocious in a civilized society. Physical harm is not required, but the distress must be severe and documented. Remember: IIED is the only intentional tort that does not require intent (since recklessness is permissible).

Negligent infliction of emotional distress (NIED) occurs when the defendant’s negligent conduct causes emotional distress to the plaintiff. Unlike IIED, NIED does not require intentional or outrageous conduct. Jurisdictions vary, but common approaches include the "zone of danger" rule, where the plaintiff must have been in immediate risk of physical harm, and the "bystander rule," where the plaintiff witnesses harm to a close relative and suffers emotional distress as a result.

BONUS: E – Economic Torts: Economic torts involve wrongful actions that cause financial harm, such as fraud, misrepresentation, or tortious interference with business relationships.

F – False Imprisonment: False imprisonment occurs when the defendant intentionally confines the plaintiff to a bounded area without lawful justification, and the plaintiff is aware of or harmed by the confinement. Physical force, threats, or false assertions of legal authority can create confinement.

BONUS: F – False Light: False light is a privacy tort that arises when the defendant publishes information about the plaintiff that places them in a false and offensive position. The publication must be highly offensive to a reasonable person and made with knowledge of or reckless disregard for its falsity.

BONUS: F – Fraud: Fraud is an intentional misrepresentation of a material fact made with knowledge of its falsity and intent to induce reliance, resulting in harm to the plaintiff who reasonably relies on it.

G – Gratuitous Bailments: Gratuitous bailments occur when one party (the bailee) voluntarily takes possession of another’s property (the bailor) without compensation. The bailee owes a duty of slight care and is only liable for gross negligence in handling the property. This concept distinguishes bailments involving compensation, which require a higher standard of care.

H – Harm: Harm refers to the injury or loss suffered by the plaintiff as a result of the defendant’s wrongful act. Harm can be physical, emotional, or economic and is a key element in proving damages.

I – Intent: Intent is the state of mind where the defendant desires to bring about the consequences of their actions (specific intent) or knows with substantial certainty that those consequences will occur (general intent). Intent is required for all but one intentional tort (IIED).

BONUS: I – Invasion of Privacy: Invasion of privacy encompasses four distinct torts: intrusion upon seclusion, appropriation of name or likeness, public disclosure of private facts, and false light. Each involves an unwarranted interference with the plaintiff’s right to be left alone.

BONUS: I – Intrusion Upon Seclusion: Intrusion upon seclusion occurs when the defendant intentionally intrudes upon the plaintiff’s private affairs or solitude in a manner that would be highly offensive to a reasonable person. Physical entry is not required; examples include eavesdropping, unauthorized surveillance, or prying into confidential information.

J – Justifiable Reliance: Justifiable reliance occurs when the plaintiff reasonably depends on a representation or promise made by the defendant, leading to harm if the reliance is later proven to be misplaced. This concept is often seen in cases involving fraud or misrepresentation, where the plaintiff’s reliance on false information was reasonable under the circumstances.

K – Knowledge Requirement: The knowledge requirement pertains to the defendant’s awareness of certain facts that impact liability. For example, in intentional torts, the defendant must know with substantial certainty that their actions will cause harm. This concept is distinct from negligence, which assesses reasonableness rather than certainty of harm.

L – Liability: Liability refers to the legal responsibility for one’s actions or omissions that cause harm to another. Liability should not be confused with guilt, which pertains to criminal law. Liability determines responsibility in civil cases, focusing on restitution or compensation rather than punishment.

BONUS: L – Loss of Consortium: Loss of consortium is a claim brought by a spouse or close family member for the loss of companionship, care, or affection resulting from the injury or death of a loved one due to the defendant’s tortious conduct.

BONUS: L – Libel: Libel is a form of defamation that involves written or published false statements that harm a person’s reputation. Unlike slander, libel does not require proof of actual damages if the statement is defamatory on its face (libel per se). Examples include statements in newspapers, books, online posts, or broadcasts.

M – Misrepresentation: Misrepresentation occurs when the defendant makes a false statement of material fact, intending to induce the plaintiff to act or refrain from acting, and the plaintiff reasonably relies on the statement to their detriment. Misrepresentation can be intentional (fraudulent), negligent, or innocent, with liability depending on the nature of the defendant’s conduct and the harm caused.

BONUS: M – Mistake: Mistake generally does not negate intent in intentional torts. If a defendant intends to perform a physical act, they are liable even if they acted under a mistaken belief. Remember Ranson v. Kitner, where the defendant mistakenly shot the plaintiff’s dog, believing it was a wolf? Despite the error, the court held the defendant liable for conversion, emphasizing that a mistake about the identity of the victim or property does not excuse intentional conduct. In intentional torts, liability is based on the intent to act, not the intent to cause harm, meaning even a good faith mistake does not absolve responsibility.

N – Nuisance: Nuisance is an interference with the plaintiff’s use and enjoyment of their property. Public nuisance affects the community, while private nuisance affects an individual or a limited group.

BONUS: N – Necessity: Necessity is a defense to intentional torts involving property, such as trespass, and is categorized into two types:

Public Necessity: This occurs when the defendant acts to protect the community or a significant number of people from a serious threat, such as destroying property to stop the spread of a fire. Public necessity provides a complete defense and absolves the defendant of liability.

Private Necessity: This arises when the defendant acts to protect their own interests or the interests of a limited number of people from harm. Unlike public necessity, private necessity is an incomplete (or qualified) defense, meaning the defendant may still be liable for damages caused to the property but not for the trespass itself.

O – Outrageous Conduct: Outrageous conduct refers to behavior that exceeds all bounds of decency and is intolerable in a civilized society. It is a key element in claims for intentional infliction of emotional distress (IIED).

P – Products Liability: Products liability imposes liability on manufacturers, distributors, and sellers for injuries caused by defective products. This liability can be based on multiple theories, including:

Strict Liability: Holds defendants liable for defective products regardless of fault, focusing on the condition of the product rather than the defendant’s conduct.

Negligence: Requires proof that the defendant failed to exercise reasonable care in the design, manufacture, or warning of risks associated with the product.

Intentional Torts: May apply if the defendant knowingly placed a harmful product into the marketplace with the intent to cause harm.

Warranties: Includes breach of express warranties (specific promises about a product) and implied warranties, such as the implied warranty of merchantability and the implied warranty of fitness for a particular purpose.

These theories collectively ensure that injured plaintiffs can seek redress when harmed by defective products.

Q – Qualified Privilege: Private necessity is a qualified privilege (see “N – Necessity”). Also, a qualified privilege to defamation claims applies when the defendant makes a statement in good faith on a matter of public interest or within a protected relationship, such as employer-employee or peer reviews. To overcome this privilege, the plaintiff must show the statement was made with malice or improper purpose.

R – Recapture of Chattels: Recapture of chattels permits a property owner to use reasonable force to reclaim personal property wrongfully taken or withheld by another, provided the owner acts promptly after the dispossession. This privilege does not extend to actions that cause a breach of the peace or excessive harm.

S – Strict Liability: Strict liability imposes liability on a defendant regardless of fault or intent. Common examples include liability for abnormally dangerous activities, defective products, and harm caused by wild animals.

BONUS: S – Slander: Slander is a form of defamation that involves making a false and damaging statement about another person through a transient medium, such as spoken words or gestures. Unlike libel, which is written or published, slander generally requires proof of actual damages unless it falls under the category of slander per se, where the statement inherently causes harm, such as allegations of criminal behavior or professional incompetence.

T – Trespass to Land: Trespass to land occurs when the defendant intentionally enters the plaintiff’s land without permission or remains on the land after their right to be there has expired. Physical harm to the land is not required to establish liability.

BONUS: T – Trespass to Chattels: Trespass to chattels involves the intentional interference with another’s personal property, causing harm or depriving the owner of its use. The interference must result in actual damage or dispossession for liability to arise.

U – Ultrahazardous Activities: Ultrahazardous activities are those that pose a high risk of serious harm that cannot be eliminated through reasonable care. Defendants engaged in such activities are strictly liable for any resulting damages.

V – Vicarious Liability: Vicarious liability holds an employer or principal liable for the torts of their employee or agent committed within the scope of their employment or agency relationship.

W – Wrongful Prosecution of Legal Proceedings: Wrongful prosecution of legal proceedings refers to torts such as malicious prosecution and abuse of process. Malicious prosecution occurs when a defendant initiates a legal action without probable cause and with malice, causing harm to the plaintiff. Abuse of process involves using legal proceedings for an ulterior purpose, unrelated to the intended scope of the process, resulting in harm to the plaintiff.

X – Express Consent: Express consent occurs when a plaintiff explicitly agrees to the defendant’s conduct, either verbally or in writing. This defense is commonly invoked in intentional tort cases, such as battery or trespass, where the plaintiff’s clear permission negates liability. Express consent must be specific and voluntary to be valid.

BONUS: Implied consent, on the other hand, arises from a plaintiff’s conduct, circumstances, or relationships, suggesting agreement to the defendant’s actions even without explicit words. For example, implied consent may exist in crowded public spaces where incidental contact is expected or in medical emergencies where a patient is unable to provide express consent. Unlike express consent, implied consent is inferred and subject to reasonableness under the circumstances.

Y – Young Children in Intentional Torts: Young children may still be held liable for intentional torts if they have the capacity to form intent. The case of Garratt v. Dailey illustrates this principle, where a young boy’s actions were evaluated to determine if he had the requisite intent to commit battery. Courts assess the specific circumstances, including the child’s understanding and actions, to determine liability for intentional torts.

Z – Zoning and Property Use in Torts: Zoning and property use laws can give rise to tort claims when violations interfere with others' property rights. For example, a property owner operating a business in violation of zoning laws might create a private nuisance if the business generates excessive noise, pollution, or traffic. Such conflicts between zoning compliance and tort law highlight the importance of balancing individual property rights with community standards and regulations.