Most Commonly Tested Torts Issues

Two different documents drive this answer, and you need both. For the MBE, the NCBE subject-matter outline divides Torts into intentional torts, negligence, strict liability and products liability, and "other torts" (misrepresentation, defamation and privacy, nuisance, business torts), and states that roughly half the questions come from negligence with the rest spread among the other three categories. For your final, the controlling document is your syllabus and your professor's past exams, because casebook coverage varies enormously — some courses spend three weeks on defamation and never reach nuisance, others do the reverse.

Within negligence, the tested issues cluster predictably. Duty questions almost always involve a limitation on the general duty of reasonable care: nonfeasance and the affirmative-duty exceptions, landowner duties, negligent infliction of emotional distress, or pure economic loss. Breach questions test the standard of care (reasonable person, professionals, children, statutory negligence per se) and how you prove it, including res ipsa loquitur. Causation splits into but-for/substantial-factor problems and proximate cause. Damages and defenses close the loop.

A useful triage rule: if a fact pattern contains an accident, assume negligence is the primary claim and that the professor buried the hard issue in duty or proximate cause, not in breach. Breach is where you spend words; duty and proximate cause are where you earn points.

Proximate cause is the single most reliably tested negligence issue because it has no mechanical answer. Know the foreseeability framing from Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928) — Cardozo's duty-to-this-plaintiff approach versus Andrews's dissent — and the foreseeable-type-of-harm rule from Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (Wagon Mound No. 1), [1961] A.C. 388 (P.C.). Layer on the intervening-cause rules: foreseeable intervening forces (rescuers, medical malpractice treating the original injury, ordinary negligence of others) do not cut off liability; unforeseeable criminal acts or acts of nature often do. The eggshell-plaintiff rule sits alongside this and is a favorite trap, because it governs extent of harm, not type.

Breach is tested through proof problems as much as through the standard itself. Res ipsa loquitur appears constantly: the classic version from Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863), and the multiple-defendant expansion in Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944). Negligence per se is equally common; test the class-of-persons and type-of-harm limits and remember that in most jurisdictions violation establishes breach, not the whole case, and excuses (emergency, incapacity, greater danger in compliance) survive.

Duty limitations are the second-highest-value cluster. Expect at least one of these: no duty to rescue absent a special relationship, undertaking, or defendant-created peril; the duty to control or warn about a third party's dangerous conduct, as in Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334 (1976); landowner duties under either the traditional trespasser/licensee/invitee trichotomy or the unitary reasonableness standard of Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561 (1968). Say which approach your jurisdiction uses and then argue the other.

Intentional torts are tested for precision, not judgment. The recurring fight is what "intent" means: purpose or substantial certainty, illustrated by Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955), and the single-intent versus dual-intent split in battery (must the defendant intend contact, or contact that is harmful or offensive?). Pair this with transferred intent across the five trespassory torts and with Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891), for the point that the defendant need not intend the resulting harm.

Intentional infliction of emotional distress is heavily tested because the extreme-and-outrageous element invites argument, and because the bystander branch has strict presence and relationship requirements. False imprisonment questions turn on awareness of confinement or actual harm from it, and on whether moral pressure or threatened future harm counts as confinement. Trespass to land is tested through intangible intrusions and through the privilege line.

Defenses are where most points hide. Consent (express, implied, exceeded scope, consent to a crime), self-defense and defense of others, and defense of property — which never justifies deadly force or a spring gun, per Katko v. Briney, 183 N.W.2d 657 (Iowa 1971). Necessity is the perennial favorite: public necessity is a complete defense, private necessity is incomplete and leaves the actor liable for actual damage, as in Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221 (1910).

Strict liability has three tested pockets: abnormally dangerous activities, animals, and products. For abnormally dangerous activities, know the multi-factor Restatement (Second) of Torts § 520 approach and the narrower Restatement (Third) formulation keyed to foreseeable and highly significant risk that cannot be eliminated by reasonable care plus uncommon usage. Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), is the origin point. The tested wrinkle is scope: strict liability extends only to the kind of harm that makes the activity abnormally dangerous.

Products liability is a near-certainty on any exam that covers it. Trace the doctrine from MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (privity abolished in negligence), through Justice Traynor's concurrence in Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P.2d 436 (1944), to Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897 (1963), and Restatement (Second) of Torts § 402A. Then know the modern three-defect framework in Restatement (Third) of Torts: Products Liability § 2: manufacturing defect (departure from intended design, true strict liability), design defect, and inadequate warning.

The examinable conflict is the design-defect test. The Third Restatement requires a reasonable alternative design; many states retain the consumer-expectations test, and some use both. Say which test governs, apply it, then apply the other. Add the recurring sub-issues: who counts as a commercial seller, the learned-intermediary rule, obvious dangers and the duty to warn, misuse and foreseeable misuse, post-sale warnings, and whether comparative fault or assumption of risk reduces a strict liability recovery.

Vicarious liability is tested on nearly every exam because it converts a one-defendant fact pattern into a solvent-defendant fact pattern. Master the scope-of-employment question (frolic versus detour, intentional torts by employees, the coming-and-going rule), the independent-contractor rule and its nondelegable-duty and inherently-dangerous-activity exceptions, and direct-liability theories that survive independent-contractor status: negligent hiring, retention, supervision, and entrustment.

Apportionment follows. Identify whether the jurisdiction uses contributory negligence, pure comparative fault (Li v. Yellow Cab Co., 13 Cal. 3d 804, 532 P.2d 1226 (1975)), or modified comparative fault with a 50 or 51 percent bar. Then address joint and several liability versus several-only liability, contribution, indemnity, and the effect of a settlement with one tortfeasor. Assumption of risk questions turn on whether the doctrine is express, primary (a no-duty rule), or implied secondary (usually merged into comparative fault).

On damages, be able to separate compensatory categories (past and future medical, lost earning capacity, pain and suffering) from the collateral-source rule, the duty to mitigate, and punitive damages standards. Wrongful death and survival actions are distinct statutory claims with different plaintiffs and different recoverable elements; conflating them is a common error.

Professors rarely differentiate on the obvious negligence claim. They differentiate on the buried second claim and on defenses nobody spots. Watch for nuisance (private nuisance requires a substantial and unreasonable interference with use and enjoyment; public nuisance requires special injury for a private plaintiff) hiding inside what looks like a strict liability problem. Watch for defamation and the constitutional overlay: New York Times Co. v. Sullivan, 376 U.S. 254 (1964), for actual malice as to public officials, and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), for private plaintiffs and presumed damages. Watch for the four privacy torts, intentional misrepresentation, and negligent misrepresentation with its narrow class of foreseeable recipients.

Also watch for loss-of-chance causation in medical cases, market-share liability, negligent spoliation, and the distinction between a claim for negligent infliction of emotional distress and one for the negligent handling of a corpse or a mishandled bad-news communication. If your professor assigned it, assume it is fair game and be ready to state the rule in one sentence.

Organize by plaintiff, then by defendant, then by claim, then by element. Do not write a floating essay about "negligence." Under each element, state the rule, apply the specific facts you were given, and state the counterargument. Breach is where facts are consumed: name every fact that supports unreasonableness and every fact that cuts against it, and use a risk-utility framing (burden of precaution against probability and magnitude of harm) rather than asserting a conclusion.

Always run both causation prongs separately. Students lose points by writing "the defendant caused the injury" and moving on. Say but-for causation is satisfied (or run substantial-factor if there are multiple sufficient causes), then run scope of liability as a distinct analysis. Finish every claim with defenses even when they lose, and end with a short remedies paragraph. Where the jurisdiction's rule is unstated, name the split, pick one, and analyze under both — that is the single most reliable way to convert a hard issue into points.