Bar Exam Torts 2 — Questions and Answers

Question 1: Under the Restatement (Second) of Torts § 402A, which of the following is a required element for strict products liability?

The defendant was negligent in the design, manufacture, or sale of the product
The product was in a defective condition unreasonably dangerous when it left the seller's control (Correct answer)
The plaintiff assumed the risk of the product's known dangers
The defendant was a retailer who purchased the product from the manufacturer

Correct answer: The product was in a defective condition unreasonably dangerous when it left the seller's control

Strict products liability under § 402A requires: (1) a seller engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the user; (3) the defect existed when it left the defendant's control; (4) the defect caused the plaintiff's physical harm. Negligence is not required.

Strict products liability (Restatement (Second) § 402A, adopted in Greenman v. Yuba Power Products, Cal. 1963) allows a plaintiff to recover without proving the manufacturer's negligence. Elements: (1) Defendant is a commercial seller (merchant in the business of selling that type of product — not a one-time private seller); (2) The product was defective when it left the defendant's hands: (a) Manufacturing defect — the product deviated from its intended design; (b) Design defect — the entire product line is defective in design (tested by consumer expectations test or risk-utility/risk-benefit test); (c) Warning defect — failure to adequately warn of known non-obvious dangers; (3) The defect caused the plaintiff's injury; (4) The plaintiff suffered damages. Defenses: assumption of risk, comparative fault (in most jurisdictions). The 'unreasonably dangerous' requirement of § 402A has been criticized as conflating negligence; the Restatement (Third) of Torts: Products Liability (1998) eliminates this language for design and warning claims.

Question 2: A defendant punches a plaintiff believing the plaintiff was someone else who had insulted him. Which element of battery is satisfied?

The defendant must have intended to cause harmful contact with this specific plaintiff
The defendant intended to make harmful contact with someone, and transferred intent applies to battery (Correct answer)
Battery requires specific intent to harm — mistake defeats the intent element
The plaintiff assumed the risk of being punched by being in a bar

Correct answer: The defendant intended to make harmful contact with someone, and transferred intent applies to battery

The doctrine of transferred intent applies to battery. If a defendant intends to commit a tort against one person but actually commits it against another, the intent transfers to the actual victim. A defendant who intends to punch A but hits B is liable to B for battery — the intent to strike 'transfers' to the actual contact.

Battery is an intentional act that causes a harmful or offensive contact with another's person. The intent requirement for battery is satisfied by: (1) Specific intent to cause harmful or offensive contact with the plaintiff; OR (2) Transferred intent — when the defendant intends a tort against one person but it occurs to another. Transferred intent applies to: battery, assault, false imprisonment, trespass to land, and trespass to chattels (the 'original five' intentional torts). The doctrine has two branches: (1) Transfer between persons: intent to batter A transfers to battery of B; (2) Transfer between torts: intent to commit one of the five torts can transfer to another — e.g., throwing a rock intending only to frighten (assault), but actually hitting (battery). A mistaken identity case is a classic transferred intent scenario — defendant's intent to batter the intended victim transfers to the actual victim, even though defendant did not intend to harm this specific person.

Question 3: Which defense to defamation provides absolute immunity for a legislator's statements made in the course of the legislative process?

The fair comment privilege
The qualified privilege for statements of public interest
The absolute privilege for government proceedings (Correct answer)
The constitutional privilege under New York Times v. Sullivan

Correct answer: The absolute privilege for government proceedings

Absolute privilege provides complete immunity from defamation liability regardless of the defendant's knowledge or malice. It applies to: statements by legislators in the course of legislative proceedings (under the Speech or Debate Clause), judicial proceedings (by judges, witnesses, attorneys), executive officers in the discharge of official duties, and spouses communicating with each other.

Defamation privileges prevent liability even for false, defamatory statements in certain contexts where free communication serves an overriding public interest. Absolute privileges (cannot be defeated by showing malice or bad faith): (1) Legislative proceedings: statements made by legislators while performing legislative functions (U.S. Constitution, Article I, Section 6 — Speech or Debate Clause); (2) Judicial proceedings: statements by judges, parties, witnesses, and attorneys during proceedings, if related to the matter; (3) Executive communications: high-level executive officers performing official duties; (4) Spousal communications: communications between spouses during the marriage. Qualified (conditional) privileges: overcome if plaintiff proves the speaker knew the statement was false or acted in reckless disregard of its truth/falsity, or used the privilege for an improper purpose. Common qualified privileges: employment references, statements to law enforcement, reports of suspected child abuse, communications among those with a common interest. The constitutional privilege (New York Times v. Sullivan) applies when the plaintiff is a public official or figure — actual malice must be proven with clear and convincing evidence.

Question 4: A plaintiff suing for intentional infliction of emotional distress (IIED) must prove what level of conduct by the defendant?

Ordinary negligence causing emotional distress
Reckless or negligent conduct that a reasonable person would find upsetting
Extreme and outrageous conduct exceeding all bounds of decency tolerated in a civilized society (Correct answer)
Any intentional act that causes the plaintiff to experience fear or anxiety

Correct answer: Extreme and outrageous conduct exceeding all bounds of decency tolerated in a civilized society

IIED under Restatement (Second) § 46 requires: (1) extreme and outrageous conduct — beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized community; (2) intentional or reckless infliction; (3) causing severe emotional distress. The high threshold excludes mere insults, petty slights, and ordinary rudeness.

Intentional Infliction of Emotional Distress (IIED) is one of the most difficult torts to establish. Elements: (1) Conduct: extreme and outrageous — the Restatement describes it as conduct that 'exceeds all bounds usually tolerated by decent society.' Mere insults, threats, or annoyances are insufficient; (2) Intent or recklessness: the defendant either intended to cause the emotional distress or acted in reckless disregard of a high probability of causing it; (3) Causation: the conduct caused the emotional distress; (4) Severity: the plaintiff suffered severe emotional distress — more than mere discomfort, transient sadness, or bruised feelings. Courts are particularly willing to find outrageous conduct when: the defendant is in a position of power over the plaintiff (employer, creditor, innkeeper), the plaintiff is in a particularly vulnerable class the defendant knew about, or the conduct is continuous. Some jurisdictions also recognize NIED (Negligent Infliction of Emotional Distress) under either the zone of danger rule or the bystander rule.

Question 5: Which of the following would most likely constitute a nuisance that is actionable as a private nuisance?

A neighbor who builds a fence that blocks the plaintiff's view of a park
A neighbor who operates a late-night car repair shop causing noise and odors that substantially interfere with the plaintiff's sleep and enjoyment of their home (Correct answer)
A city that installs a bus stop in front of the plaintiff's house
A neighbor who parks an ugly car in their own driveway, which the plaintiff finds offensive

Correct answer: A neighbor who operates a late-night car repair shop causing noise and odors that substantially interfere with the plaintiff's sleep and enjoyment of their home

Private nuisance requires: (1) substantial interference with (2) the plaintiff's use and enjoyment of their land, caused by the defendant's intentional, negligent, or abnormally dangerous conduct. Chronic noise and odors from a nearby business that substantially interfere with sleep and home enjoyment meet this standard.

Private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land. Elements: (1) The defendant's conduct is intentional, negligent, or abnormally dangerous; (2) The interference is substantial — not just petty annoyances or aesthetic preferences; (3) The interference is unreasonable — this is the balancing test: gravity of the harm to plaintiff vs. utility of defendant's conduct; (4) The harm affects plaintiff's use and enjoyment of land (plaintiff must have a possessory interest in the land). A view blocked by a fence is generally not actionable (no right to a view). Offensive aesthetics (ugly car in neighbor's driveway) is generally insufficient — subjective visual displeasure doesn't meet the substantial/unreasonable test. Government authorized activities may have a defense of public authority. The utility of the defendant's conduct (e.g., running a legitimate business) is weighed against the gravity of the harm in determining unreasonableness.

Question 6: Under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tort when the tort was committed:

At any time the employee has access to the employer's equipment or vehicles
Within the scope of employment, meaning the act was the kind authorized, occurred within the authorized time and space, and was motivated at least in part by serving the employer (Correct answer)
Only when the employer knew about the employee's dangerous propensities
Only when the employer specifically directed the employee to commit the tortious act

Correct answer: Within the scope of employment, meaning the act was the kind authorized, occurred within the authorized time and space, and was motivated at least in part by serving the employer

Respondeat superior imposes vicarious liability on employers for torts committed by employees within the scope of employment. Scope of employment generally means: (1) the act was of the kind the employee was hired to do; (2) it occurred within the authorized time and space limits; and (3) it was motivated, at least in part, by serving the employer's purpose.

Respondeat superior (let the master answer) makes employers vicariously liable for employee torts within the scope of employment. The three-part test from the Restatement: (1) Kind of conduct: the act was the kind of conduct the employee was authorized to perform — intentional torts are usually outside scope unless the job involves a risk of such torts (bouncer, debt collector); (2) Time and space: the tort occurred within the authorized time and space limits — 'frolic' vs. 'detour' distinction: a major deviation from authorized route/purpose (frolic) is outside scope; a minor deviation (detour) is within scope; (3) Purpose: the employee was motivated at least in part to serve the employer — an employee who commits a tort while pursuing entirely personal goals is outside scope. Independent contractors: generally, principals are not vicariously liable for an independent contractor's torts — exceptions include non-delegable duties, inherently dangerous activities, and negligent selection of the contractor.

Bar Exam Torts 2

Under the Restatement (Second) of Torts § 402A, which of the following is a required element for strict products liability?