Plain-English definitions of 119 torts terms for bar exam candidates and law students, with links between related concepts.
Activities & Animals
Abnormally Dangerous Activities — Activities that create a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and are not common…
Rylands v. Fletcher Rule — Defendant who brings anything on land likely to cause harm if it escapes is strictly liable if it does escape and cause…
Trespassing Animals — Owner strictly liable for reasonably foreseeable damage caused by trespass of livestock or other animals to another's property. No fault required. Applies…
Against Persons
Extreme and Outrageous Conduct — Threshold element for IIED requiring conduct that exceeds all bounds of decency tolerated in civilized society. Mere insults, indignities, annoyances insufficient. Conduct…
Intentional Torts Against Persons — A category of intentional torts that protect personal interests in bodily integrity, freedom of movement, and emotional well-being. Includes battery (harmful/offensive contact),…
Offensive Contact — Contact that offends reasonable sense of personal dignity even if not harmful. Battery requires either harmful or offensive contact. Offensive contact determined…
Shopkeeper's Privilege — Limited privilege allowing merchants to detain suspected shoplifters for reasonable investigation. Must have reasonable suspicion of theft, detain in reasonable manner, for…
Transferred Intent — Doctrine allowing intent toward one person or tort to satisfy intent element for different person or tort. Intent transfers between persons and…
Against Property
Conversion — Intentional exercise of dominion or control over plaintiff's personal property that so seriously interferes with plaintiff's right of possession as to justify…
Intent Requirement — For intentional torts, defendant must intend the act and resulting contact, confinement, or invasion - not necessarily the harm or knowledge that…
Intentional Torts Against Property — Intentional torts protecting property interests, including trespass to land (unauthorized entry onto another's land), trespass to chattels (interference with another's personal property),…
Reasonable Mistake as to Chattels — Mistaken belief about ownership or right to possess chattels is no defense to intentional torts to property. Even honest and reasonable mistake…
Trespass to Chattels — Intentional interference with plaintiff's possessory interest in personal property causing harm. Less serious than conversion. Requires: (1) intent to interfere with chattel,…
Trespass to Land — Intentional physical invasion of another's real property without permission. Requires only intent to enter the land, not intent to trespass or knowledge…
Breach
Breach — The second element of negligence, established when the defendant's conduct falls below the standard of care required by law. Breach is typically…
Breach of Duty — The second element of negligence, requiring plaintiff to prove defendant's conduct fell below the applicable standard of care. Breach is measured by…
Custom and Usage — Evidence of industry custom and standard practices relevant to determining breach but not conclusive. Compliance with custom does not automatically establish reasonable…
Hand Formula (Carroll Towing) — Judge Learned Hand's algebraic formulation of negligence from United States v. Carroll Towing Co. (2d Cir. 1947): a defendant is negligent when…
Negligence Per Se — Doctrine establishing that violation of a safety statute constitutes conclusive or presumptive evidence of breach of duty when: (1) plaintiff is member…
Professional Standard of Care — Professionals (doctors, lawyers, architects, accountants) are held to the standard of a reasonably competent practitioner in the same field under the same…
Reasonable Person Standard — An objective standard used to determine whether a defendant's conduct breached the duty of care. It asks what a hypothetical reasonable person…
Violation of Statute — Evidence that defendant violated safety statute. If statute designed to protect class of persons that includes plaintiff from type of harm that…
Causation
But-For Test — Primary test for actual causation: but for the defendant's conduct, would plaintiff's harm have occurred? If answer is no, defendant's conduct is…
Causation — The third element of negligence, requiring proof that the defendant's breach was both the actual cause (cause-in-fact) and the proximate cause (legal…
Eggshell Plaintiff Rule — Defendant takes plaintiff as found and is liable for full extent of injuries even if severity unforeseeable due to plaintiff's preexisting condition…
Foreseeability — Central concept in both duty and proximate cause analysis, limiting liability to foreseeable consequences and foreseeable plaintiffs. Under the Cardozo majority rule…
Intervening Cause — An event that occurs after the defendant's negligent act and contributes to the plaintiff's harm. A superseding intervening cause breaks the chain…
Substantial Factor Test — Alternative causation test used when multiple forces combine to cause harm, each alone sufficient. Defendant's conduct must be substantial factor in bringing…
Superseding Cause — An unforeseeable intervening cause that breaks chain of causation and relieves original defendant of liability. Must be independent of defendant's negligence and…
Damages
Collateral Source Rule — Benefits plaintiff receives from sources independent of tortfeasor do not reduce defendant's liability. Insurance payments, sick leave, gifts, medical benefits from employment…
Damages — The fourth and final element of negligence, requiring proof that the plaintiff suffered actual harm or loss. Damages may include economic losses…
Economic Damages — Compensatory damages for quantifiable monetary losses. Includes past and future medical expenses, lost wages, lost earning capacity, property damage. Also called special…
Economic Loss Rule — Doctrine barring recovery of pure economic losses in negligence actions when there is no accompanying physical injury to person or property. Pure…
Joint and Several Liability — A doctrine holding multiple defendants each liable for the full amount of plaintiff's damages when they act in concert or their conduct…
Non-Economic Damages — Compensatory damages for intangible harms not easily quantifiable. Includes pain and suffering, emotional distress, loss of enjoyment of life, disfigurement, loss of…
Pain and Suffering — Non-economic compensatory damages awarded for the physical pain and mental anguish resulting from an injury. This includes both past and future pain,…
Punitive Damages — Exemplary damages awarded beyond compensation to punish the defendant for malicious, oppressive, fraudulent, or reckless conduct and to deter similar conduct in…
Defamation
Actual Malice — Constitutional fault standard for defamation claims by public figures and public officials. Plaintiff must prove defendant published with knowledge of falsity or…
Defamation — False statement of fact about plaintiff published to third party that damages plaintiff's reputation. Two forms: libel (written) and slander (spoken). Requires:…
Fair Comment — Privilege protecting opinion and commentary on matters of public interest. Opinion not actionable as defamation if based on disclosed or generally known…
Libel Per Se — Written defamation presumptively harmful requiring no proof of special damages. Includes same categories as slander per se plus potentially all libel in…
Public Figure — Person who has assumed role of special prominence in society or thrust themselves into public controversy. Must prove actual malice (knowledge of…
Qualified Privilege — Conditional defense to defamation protecting statements made in good faith on matters where speaker has interest or duty to communicate to recipient…
Retraction Statute — State statutes allowing media defendants to limit damages by publishing prompt retraction after demand. Typically requires timely retraction with equal prominence to…
Slander Per Se — Spoken defamation of special categories where damages are presumed without proof of actual harm. Four categories: (1) criminal behavior, (2) loathsome disease,…
Duty of Care
Dram Shop Liability — Statutory cause of action imposing liability on commercial alcohol vendors (bars, restaurants, liquor stores) who serve alcohol to visibly intoxicated persons or…
Duty of Care — A legal obligation to exercise reasonable care to avoid causing harm to others. The duty of care is the first element of…
Duty to Rescue / Good Samaritan — General rule: there is no affirmative duty to rescue a stranger in peril, even if rescue would be easy and risk-free. Exceptions…
Negligent Entrustment — A person who entrusts a vehicle, weapon, or other dangerous instrumentality to someone they know or should know is incompetent, inexperienced, or…
Negligent Infliction of Emotional Distress — A tort claim for emotional distress caused by defendant's negligent conduct. The threshold question is whether defendant owed a duty to avoid…
Premises Liability - Invitee Duty — Land possessor owes invitees duty to inspect premises and make safe or warn of non-obvious dangerous conditions. Invitee enters for purpose related…
Rescue Doctrine — One who negligently creates danger owes duty of care to rescuers who attempt to save persons or property imperiled by the defendant's…
Special Relationship Duty — Heightened duty of care arising from special relationships where one party has control over another or undertakes to provide protection. Examples: common…
Economic Torts
Economic Torts — Torts involving interference with economic relationships or interests, including fraudulent misrepresentation, negligent misrepresentation, intentional interference with contract, intentional interference with prospective economic…
Intentional Interference with Contract — Defendant intentionally and improperly causes third party to breach valid contract with plaintiff causing economic harm. Requirements: (1) valid contract, (2) defendant's…
Intentional Interference with Prospective Economic Advantage — Defendant intentionally interferes with plaintiff's reasonable expectation of economic benefit from prospective business relationship. More difficult to prove than contract interference. Requires…
Negligent Misrepresentation — Negligent false statement made in business or professional capacity with intent that plaintiff rely, plaintiff justifiably relies, causing pecuniary loss. Distinguished from…
Intent Tort Defenses
Consent — Complete defense to intentional torts when plaintiff expressly or impliedly manifests willingness for defendant's conduct. May be express (words) or implied from…
Defense of Others — Privilege to use reasonable force to defend third persons from imminent harmful or offensive contact. Traditionally limited to defending family members but…
Defense of Property — Privilege to use reasonable force to prevent or terminate trespass to land or chattels. Cannot use deadly force or force likely to…
Defenses to Intentional Torts — Privileges and affirmative defenses that justify otherwise tortious intentional conduct. Main defenses include consent (express or implied), self-defense and defense of others…
Necessity — Privilege to commit what would otherwise be a tort when reasonably necessary to prevent greater harm. Public necessity: benefiting community, complete defense.…
Recapture of Chattels — Limited privilege to use reasonable force to recapture personal property wrongfully taken. Requirements: (1) timely pursuit (fresh pursuit), (2) proper possession initially,…
Self-Defense (Tort Privilege) — Privilege to use reasonable force to protect oneself from imminent harmful or offensive contact caused by another's tortious conduct. Defendant must reasonably…
Intentional Torts
Assault — An intentional act that creates a reasonable apprehension of imminent harmful or offensive contact. No actual contact is required. Plaintiff must be…
Battery — An intentional harmful or offensive contact with another person. Requires: (1) intent to cause contact, (2) harmful or offensive contact, and (3)…
False Imprisonment — Intentional confinement of a person within boundaries fixed by the defendant. Requires: (1) intent to confine, (2) actual confinement, (3) plaintiff's awareness…
Intentional Infliction of Emotional Distress — Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress. Requires: (1) extreme and outrageous conduct, (2) intent or recklessness, (3)…
Intentional Torts — A category of torts requiring proof that the defendant acted with intent to cause the consequence or with knowledge that the consequence…
Malicious Prosecution / Abuse of Process — Malicious prosecution: (1) institution of proceedings, (2) without probable cause, (3) with malice, (4) favorable termination, (5) damages. Abuse of process: use…
Negligence
Actual Cause — The 'but for' causation requirement in negligence. Plaintiff must prove that but for the defendant's breach of duty, the harm would not…
Assumption of Risk — A defense when plaintiff voluntarily encounters a known risk. Express assumption (contractual waiver) and implied assumption (conduct showing willingness to encounter risk).…
Comparative Negligence — A system that apportions fault between plaintiff and defendant. Plaintiff's recovery is reduced by their percentage of fault. Three variants: (1) Pure…
Contributory Negligence — A complete defense to negligence if plaintiff's own negligence contributed to their injuries. Under pure contributory negligence, even 1% plaintiff fault bars…
Negligence — A tort based on the defendant's failure to exercise reasonable care, resulting in harm to the plaintiff. Negligence requires proof of four…
Proximate Cause — A limitation on liability requiring that the harm suffered must be within the scope of risk created by the defendant's negligent conduct.…
Res Ipsa Loquitur — The thing speaks for itself. A doctrine allowing circumstantial evidence of negligence when: (1) accident normally doesn't occur without negligence, (2) instrumentality…
Negligence Defenses
Last Clear Chance — Plaintiff who was contributorily negligent can still recover if defendant had last clear chance to avoid harm and failed to do so.…
Negligence Defenses — Affirmative defenses that reduce or eliminate the defendant's liability in a negligence action. The primary defenses are contributory negligence (complete bar in…
Pure Comparative Negligence — System allowing plaintiff to recover damages reduced by plaintiff's percentage of fault regardless of how great plaintiff's fault. Even if plaintiff 99%…
Nuisance
Coming to the Nuisance — Defendant argues plaintiff moved to area where nuisance already existed, so should not recover. Not absolute defense but relevant factor in balancing.…
Nuisance — A tort involving substantial and unreasonable interference with another's use and enjoyment of land. Private nuisance protects individual landowner interests; public nuisance…
Nuisance Remedies — Plaintiff may seek damages, injunction, or both for nuisance. Damages compensate for harm. Injunction orders defendant to stop or modify activity. Courts…
Private Nuisance — Substantial and unreasonable interference with another's use and enjoyment of land. Requires showing interference is intentional and unreasonable, or unintentional but resulting…
Public Nuisance — Unreasonable interference with right common to general public. Affects community at large, not just individual property owners. Examples: blocking public road, polluting…
Premises Liability
Attractive Nuisance — Doctrine imposing duty on land possessor to protect child trespassers from dangerous artificial conditions likely to attract children. Requirements: (1) dangerous artificial…
Invitee — A person who enters another's land for a purpose related to the landowner's business or for the mutual benefit of both parties.…
Licensee — Person who enters land with possessor's permission for licensee's own purpose, not for possessor's benefit. Social guests are licensees. Possessor owes duty…
Open and Obvious Danger Doctrine — Traditional rule: landowner owes no duty to warn of open and obvious dangers that invitee should readily observe and appreciate. Rational that…
Premises Liability — A landowner's or occupier's liability for injuries occurring on their property. The duty of care owed depends on the plaintiff's status: invitee…
Trespasser — Person who enters land without permission or privilege. Possessor generally owes no duty except to refrain from willful or wanton conduct. No…
Privacy Torts
Appropriation of Likeness — Invasion of privacy by unauthorized commercial use of plaintiff's name, likeness, or identity for defendant's benefit. Protects commercial value of identity. Common…
False Light — Invasion of privacy by publicly portraying person in false light that would be highly offensive to reasonable person. Similar to defamation but…
Intrusion Upon Seclusion — Invasion of privacy by intentionally intruding on plaintiff's solitude or private affairs in manner highly offensive to reasonable person. No publication required.…
Privacy Torts — Four distinct torts protecting personal privacy interests: (1) intrusion upon seclusion, (2) public disclosure of private facts, (3) false light, and (4)…
Public Disclosure of Private Facts — Invasion of privacy by publicly disclosing true private facts that are highly offensive and not of legitimate public concern. Truth is not…
Products Liability
Component Part Manufacturer — Supplier of component part generally not liable if component not defective and incorporated into final product per specifications. If component itself defective,…
Crashworthiness Doctrine — Manufacturer's duty to design vehicles to be reasonably safe in foreseeable crashes, minimizing injuries in second collision. Liable for enhanced injuries caused…
Design Defect — Product designed in a way that makes it unreasonably dangerous even when manufactured as intended. Two tests: consumer expectation (product more dangerous…
Failure to Warn — Product has inadequate instructions or warnings about non-obvious risks. Duty to warn of dangers not obvious to ordinary user. Warning must be…
Learned Intermediary Doctrine — For prescription drugs and medical devices, manufacturer's duty to warn runs to prescribing physician, not patient. Doctor acts as learned intermediary who…
Manufacturing Defect — Product that departs from its intended design even though all care was exercised. Product differs from manufacturer's specifications or other identical products.…
Strict Products Liability — Liability without fault for harm caused by defective product. Seller engaged in business of selling such products liable if product defective when…
Unavoidably Unsafe Products — Products that cannot be made safer given current technology but have benefits outweighing risks. Not defective if properly prepared and accompanied by…
Strict Liability
Products Liability — Liability of manufacturers and sellers for defective products that cause injury. Can be based on strict liability, negligence, or breach of warranty.…
Strict Liability — Liability without fault. Defendant is liable regardless of intent or negligence if they engage in certain abnormally dangerous activities or sell defective…
Torts
Governmental Immunity (Sovereign Immunity) — FTCA waives federal sovereign immunity for tort claims, with exceptions. Key exceptions: (1) discretionary function exception (policy decisions immune), (2) most intentional…
Intentional Misrepresentation (Fraud) — Elements: (1) false representation of material fact, (2) scienter, (3) intent to induce reliance, (4) justifiable reliance, (5) damages. Concealment = affirmative…
Intrafamily Immunity — Interspousal immunity: largely abolished. Parent-child: partially abolished — most states allow suits for intentional torts, motor vehicle accidents. Some retain immunity for…
Qualified Immunity (Government Employees) — Government officials shielded from liability unless conduct violates clearly established constitutional rights. Two-part test (Harlow): (1) constitutional violation? (2) right clearly established?…
Survival Action — Decedent's own tort claims survive death; estate recovers for decedent's injuries — pain, suffering, medical expenses, lost earnings from injury to death.…
Wrongful Death — Statutory action by survivors for their own losses (support, companionship, consortium). Brought by personal representative for statutory beneficiaries. NOT decedent's pain/suffering. Defenses…
Vicarious Liability
Independent Contractor — Worker who maintains control over how work is performed, not subject to employer's control except for result. Hiring party generally not vicariously…
Joint Enterprise Liability — Each member vicariously liable for others' torts within enterprise scope. Elements: (1) agreement, (2) common purpose, (3) community of pecuniary interest, (4)…
Non-Delegable Duty — Duty that cannot be escaped by delegating work to independent contractor. Person who owes non-delegable duty remains liable even if hires careful…
Parent's Liability for Child's Torts — Common law: NO vicarious liability for parent-child relationship alone. Exceptions: (1) negligent supervision, (2) negligent entrustment, (3) child as agent, (4) family…
Respondeat Superior — Employer liable for employee's torts committed within scope of employment. Latin for 'let the superior answer.' No fault by employer required. Employee…
Scope of Employment — Test for respondeat superior vicarious liability: was employee acting within scope of employment when tort occurred? Factors: (1) conduct of kind employee…
Vicarious Liability — Liability imposed on one party for the tortious conduct of another based on a special relationship between them, most commonly the employer-employee…