Torts — US Study Note

01. Overview

Tort law sits at the heart of the first-year curriculum and the bar examination alike. It is the body of civil law that imposes liability on persons who, by act or omission, cause legally cognisable harm to another. Unlike contract, liability in tort does not depend upon prior agreement; unlike criminal law, its sanctions are remedial rather than punitive in their primary orientation. The field divides into three broad categories: intentional torts, in which the defendant deliberately brings about a harmful or offensive result; negligence, in which the defendant falls below an objectively defined standard of care; and strict liability, in which liability attaches irrespective of fault.

For the bar and for law-school examinations, mastery of tort law requires precision on several axes simultaneously: the elements of each cause of action, the defences available, the rules of causation (both actual and proximate), the measure of recoverable damages, and the evolving judicial philosophy that determines where liability ends. This note treats each of those axes in turn, anchors doctrine in the landmark cases on the syllabus, and maps the most frequently tested examination traps.

A point of orientation: US tort law is overwhelmingly common-law in origin. Statutes matter — principally in products liability, workers' compensation, and the Federal Tort Claims Act — but judicial decisions remain the primary engine of doctrinal development. State law governs most tort claims; federal tort doctrine arises chiefly under the FTCA or constitutional tort theories. This note addresses both, noting where they diverge.

---

02. Historical Development

From Writ to Common Law

Early English common law channelled tort claims through rigid forms of action — trespass for direct wrongs, trespass on the case for indirect ones. The distinction between direct and indirect harm mattered for pleading, not for any deep moral reason, and its persistence into the nineteenth century increasingly hampered recovery for consequential injuries. American courts inherited this framework at independence and, through the nineteenth century, began to reshape it.

The Privity Barrier and Its Destruction

Perhaps the most consequential transformation in American tort history was the collapse of the privity rule in products liability. Under the classical English rule reaffirmed in Winterbottom v Wright (1842), a plaintiff could not sue in tort a manufacturer with whom he had no contractual relationship. This insulated manufacturers from liability to end-users — a commercially convenient but morally troubling result.

Judge Benjamin Cardozo's opinion in MacPherson v Buick Motor Co (N.Y. 1916) is the pivotal rupture. Cardozo held that a manufacturer who places into commerce a product that is reasonably certain to be dangerous if negligently made owes a duty of care to any person who foreseeably uses it — not merely to the immediate purchaser. The privity requirement was swept away for negligence claims. MacPherson transformed the duty inquiry from one of contractual relationship to one of foreseeability and reasonable reliance, laying the doctrinal groundwork for modern products liability.

The Negligence Revolution

Through the late nineteenth and early twentieth centuries, negligence displaced the older trespass/case dichotomy as the dominant framework for accidental harm. The standard of the "reasonable person" consolidated as the universal benchmark. Courts developed doctrines of contributory negligence (initially a complete bar to recovery) and began wrestling with causation problems that no prior generation of lawyers had confronted systematically.

The Scope-of-Duty Problem

The most philosophically rich development of the twentieth century was the judicial struggle to define the outer boundary of negligence liability. Palsgraf v Long Island Railroad Co (N.Y. 1928) crystallised the debate. Judge Cardozo, writing for the Court of Appeals, held that a duty of care runs only to plaintiffs within the foreseeable zone of danger — Mrs Palsgraf, standing at the far end of the platform when scales fell and injured her, was too remote. Judge Andrews's dissent argued that negligence to anyone is negligence as to the world; liability should be limited only by proximate cause, not duty. The tension between the Cardozo and Andrews approaches remains unresolved and animates virtually every modern proximate cause examination question.

Legislative Intervention

The twentieth century brought significant statutory overlays: workers' compensation schemes (eliminating common-law negligence for workplace injuries in exchange for no-fault benefits); the Federal Tort Claims Act of 1946 (partially waiving sovereign immunity for federal torts); and, in products liability, the Restatement (Second) § 402A's strict liability rule, later refined by the Restatement (Third) of Torts: Products Liability.

---

03. Core Principles

A. Intentional Torts

An intentional tort requires that the defendant act with the purpose of bringing about a particular consequence, or with knowledge to a substantial certainty that the consequence will follow (Restatement (Second) of Torts § 8A). Note carefully: intent relates to the act and its consequences, not to intent to harm — a practical joker who "intends" a startling touch commits battery if the contact is harmful or offensive.

The Major Intentional Torts:

• Battery: harmful or offensive contact with the plaintiff's person, intentionally caused. Consent, self-defence, defence of others, and defence of property are the principal defences.
• Assault: intentional act that places the plaintiff in reasonable apprehension of imminent harmful or offensive contact.
• False imprisonment: intentional confinement of the plaintiff within a bounded area, without consent or legal authority.
• Intentional infliction of emotional distress (IIED): extreme and outrageous conduct intentionally or recklessly causing severe emotional distress.
• Trespass to land: intentional entry onto another's land without consent or privilege.
• Trespass to chattels / conversion: intentional interference with another's personal property; conversion applies where the interference is so severe as to justify a forced sale.

B. Negligence — The Four-Element Test

Every negligence claim requires proof of four elements:

1. Duty — the defendant owed the plaintiff a legally recognised obligation of care.
2. Breach — the defendant fell below the applicable standard of care.
3. Causation — the breach was both the actual cause (but-for cause) and the proximate cause of the plaintiff's harm.
4. Damages — the plaintiff suffered legally cognisable harm.

C. The Standard of Care

The default is the reasonable person standard: what would a reasonable person of ordinary prudence do in the defendant's position? This objective standard is adjusted upward for professionals (the reasonable professional in the relevant field) and, in most jurisdictions, downward for children (the reasonable child of the same age, intelligence, and experience — unless the child is engaged in an adult activity).

D. Causation

Actual cause (cause-in-fact) is tested by the but-for rule: but for the defendant's breach, would the plaintiff's harm have occurred? In cases of multiple sufficient causes, courts use the substantial factor test. Proximate cause (legal cause) limits liability to harms that are the foreseeable result of the breach, cutting off liability for bizarre or unforeseeable consequences.

E. Defences to Negligence

• Contributory negligence: at common law, any negligence by the plaintiff is a complete bar. Still the rule in a small minority of states.
• Comparative negligence: the modern majority approach, dividing damages by fault percentage. Pure comparative negligence allows recovery regardless of the plaintiff's degree of fault; modified comparative negligence bars recovery if the plaintiff is 50% or 51% at fault (depending on the jurisdiction).
• Assumption of risk: express (contractual waiver) or implied (voluntary encountering of known risk).

---

04. Statutory Framework

The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680

The United States government enjoys sovereign immunity at common law. Congress partially waived that immunity in the FTCA, permitting suits against the federal government for tortious acts or omissions of government employees acting within the scope of their employment, "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

The FTCA contains important exceptions: the discretionary function exception shields governmental acts involving policy judgement; the intentional tort exception — as originally enacted — excluded battery, assault, false imprisonment, and related torts. Congress later amended § 2680(h) to permit intentional tort claims arising from the acts of law enforcement officers.

In Millbrook v United States (2012), 567 U.S. 968, the Supreme Court construed the law-enforcement proviso broadly: the intentional tort exception is waived — meaning suit is permitted — whenever a law-enforcement officer commits one of the enumerated intentional torts, regardless of whether the officer was engaged in an investigative or law-enforcement function at the moment of the act. Millbrook significantly expanded FTCA plaintiffs' ability to bring intentional tort claims against federal officers.

Restatements

The Restatement (Second) of Torts and the Restatement (Third) of Torts (Products Liability; Apportionment of Liability; Physical and Emotional Harm) are not statutes, but they carry enormous persuasive weight in American courts and are tested directly on the Multistate Bar Examination (MBE).

Products Liability — From Privity to Strict Liability

After MacPherson destroyed privity in negligence, the next step was strict liability in tort for defective products. The Restatement (Second) § 402A imposed strict liability on sellers of unreasonably dangerous defective products. Courts and the Restatement (Third): Products Liability distinguish three defect types: manufacturing defects (deviation from intended design), design defects (tested by the consumer-expectations or risk-utility standard), and warning defects (failure to warn of non-obvious risks).

Workers' Compensation

State workers' compensation statutes replace common-law negligence for most on-the-job injuries, providing scheduled no-fault benefits in exchange for foreclosing tort suits against the employer. The trade-off limits plaintiff recovery but guarantees a remedy without proof of fault.

---

05. Landmark Cases

MacPherson v Buick Motor Co (N.Y. Ct. App. 1916)

Buick sold a car to a dealer; the dealer sold it to MacPherson. A wheel, made of defective wood by a sub-supplier, collapsed, injuring MacPherson. Buick argued no duty existed absent privity of contract. Cardozo, J., held that where a manufacturer makes a product that, if negligently constructed, is reasonably certain to be dangerous, and sells it in circumstances that make it foreseeable that third parties will use it, a duty of care runs to those foreseeable users. Privity is irrelevant. MacPherson is the foundation of modern products liability negligence and established foreseeability of the user — not contractual relationship — as the organising principle of duty.

Palsgraf v Long Island Railroad Co (N.Y. Ct. App. 1928)

Guards employed by the railroad helped a passenger board a moving train; in doing so they dislodged a package of fireworks, which exploded, causing scales at the other end of the platform to fall and injure Mrs Palsgraf. Cardozo (for the majority) held that negligence is a relational concept: a defendant is liable only to those within the reasonably foreseeable zone of danger created by the negligent act. Because Mrs Palsgraf was not in any foreseeable danger from the guards' assistance, the railroad owed her no duty. Andrews, J. (dissenting) urged that negligence to one person is negligence to the world; only proximate cause, not duty, should limit liability.

Palsgraf is the single most tested case in US tort law for its dual framing of the scope-of-liability question: it is simultaneously a duty case (Cardozo's majority) and a proximate cause case (Andrews's dissent), and examiners exploit this duality relentlessly.

Millbrook v United States (2012), 567 U.S. 968

Victor Millbrook, a federal prisoner, alleged that three correctional officers assaulted him sexually. He brought suit under the FTCA. The government argued the law-enforcement proviso to § 2680(h) — which waives the intentional tort exception — applied only where officers were engaged in investigative or law-enforcement functions. The Supreme Court unanimously held that the proviso applies to the full range of conduct by law-enforcement officers; it turns on the employment status of the officer, not the nature of the specific act. Millbrook is thus the key case on FTCA intentional tort liability and illustrates how statutory tort frameworks interact with common-law intentional tort categories.

Light v United States (1911), 220 U.S. 523

The United States brought an action to restrain trespass upon and use of federal forest reserves. Light establishes the foundational common-law principle that the government may maintain an action in trespass to protect its property — affirming that the intentional tort of trespass to land is available to and against the sovereign (subject to immunity). Doctrinally, Light is relevant to trespass and the role of possessory rights in tort.

Todd v United States (1895), 158 U.S. 278

Todd addressed the government's responsibility in managing navigable waters and the scope of duty owed to maritime users. The case illustrates early federal court reasoning about the standard of care and duty in circumstances involving governmental action — foreshadowing later FTCA debates about when a governmental defendant will be held to the standard of a private tortfeasor.

Parratt v Taylor (1981), 451 U.S. 527

A state prisoner's hobby kit was negligently lost by prison officials. The Supreme Court held that the negligent deprivation of property by a state official could constitute a deprivation of property without due process, but that the availability of a post-deprivation state tort remedy satisfied due process — the Due Process Clause does not require a pre-deprivation hearing where the deprivation is the result of random, unauthorised negligence. While primarily a constitutional case, Parratt is significant in torts for its recognition that negligence by state actors can give rise to cognisable harm and that the existence of a state tort remedy is a constitutionally relevant fact. It also illustrates the intersection of § 1983 constitutional torts and common-law negligence.

---

06. Doctrinal Analysis

Duty: The Threshold Question

Duty is a question of law decided by the court, not the jury. The threshold question — to whom does the defendant owe a duty? — is answered principally by the foreseeability of harm to the particular plaintiff or the class of persons the plaintiff represents. Courts following Cardozo's Palsgraf majority confine duty to foreseeable plaintiffs in the zone of danger. Some states (notably California) adopted a broader approach: duty is presumed to run to all persons unless policy considerations counsel limitation, a framework drawn from Rowland v Christian (Cal. 1968) and foreshadowing by Andrews's Palsgraf dissent.

Special duty rules deviate from the general foreseeability framework:

• Landowner duties: common law historically stratified entrants into trespassers (no duty except to avoid wilful/wanton injury), licensees (duty to warn of known concealed dangers), and invitees (duty of reasonable inspection and repair). Many states have abolished these categories in favour of a unitary reasonable-care standard.
• Duties to rescue: absent a special relationship (common carrier/passenger, innkeeper/guest, employer/employee), there is no general duty to rescue a stranger in peril. A defendant who voluntarily undertakes a rescue, however, must carry it out with reasonable care (Restatement § 324).
• Nonfeasance vs misfeasance: the law generally does not impose affirmative duties to act, but imposes duties not to make situations worse.

Breach: The Hand Formula and Its Limits

Judge Learned Hand in United States v Carroll Towing Co (2d Cir. 1947) — a case not on this corpus list but settled law every bar taker must know — articulated the algebraic test: a party is negligent if the burden of precaution (B) is less than the probability of harm (P) multiplied by the magnitude of the potential injury (L): B < PL = negligence. The formula provides an economic gloss on the reasonable-person standard but is criticised for ignoring incommensurable values and for operating post-hoc.

Res ipsa loquitur: where the accident is of a type that ordinarily does not occur without negligence, the instrumentality causing harm was within the exclusive control of the defendant, and the plaintiff did not contribute to the accident, a jury may infer negligence without direct proof of specific breach. The doctrine shifts the burden of production (not persuasion in most states) to the defendant to explain. Classic applications: a surgical instrument left inside a patient; a barrel rolling out of a warehouse window.

Actual Causation

The but-for test works well for single-cause cases. Where two independent, each-sufficient causes concur to produce a single harm — for example, two fires independently set that merge to destroy a building — neither cause passes the but-for test. Courts apply the substantial factor test in such cases, allowing recovery where the defendant's conduct was a substantial factor in bringing about the harm.

Loss of chance: in medical malpractice, if a defendant's negligence deprived the plaintiff of a chance of survival that was less than 50%, the but-for test would defeat recovery entirely. Many jurisdictions now allow recovery for the loss of the chance itself, measured by the diminished probability of a better outcome.

Proximate Causation

Proximate cause performs a limiting function: even where a defendant was a but-for cause of harm, liability may not attach if the harm is too remote or unforeseeable. The major doctrines are:

• Direct cause test (minority): the defendant is liable for all direct consequences, foreseeable or not.
• Foreseeability test (majority): the defendant is liable only for harms of the same general type that made the conduct negligent in the first place.
• Intervening and superseding causes: an intervening cause is a cause that arises after the defendant's negligent act. It is superseding — and breaks the chain of proximate cause — only if it is unforeseeable. Foreseeable intervening causes (including foreseeable negligent acts of third parties, foreseeable criminal acts in some contexts) do not relieve the original defendant.
• The thin-skull (eggshell plaintiff) rule: the defendant takes the plaintiff as she finds her. If the defendant's breach causes harm that is unforeseeable in its extent (but foreseeable in its type), the defendant is liable for the full extent of harm.

Products Liability

Negligence: under MacPherson, a manufacturer owes a duty of reasonable care in design, manufacture, and warning to all foreseeable users, regardless of privity.

Strict liability (Restatement § 402A): a seller of a product in a defective condition unreasonably dangerous to the user is strictly liable for physical harm caused by the defect, even without negligence. The defect categories are:

1. Manufacturing defect: the product deviates from its intended design.
2. Design defect: the product's entire line is unreasonably dangerous — tested by (a) consumer expectations (does it perform as a reasonable consumer would expect?) or (b) risk-utility (do the risks outweigh the benefits? would a reasonable alternative design have reduced risk?).
3. Warning defect: failure to provide adequate warnings of risks that are not open and obvious.

Defences in strict products liability: comparative fault (in most modern jurisdictions), assumption of risk, misuse of the product (if not foreseeable).

Damages

Compensatory damages aim to make the plaintiff whole:

• Special (economic) damages: medical expenses, lost wages, lost earning capacity — must be specifically pleaded and proved.
• General (non-economic) damages: pain and suffering, emotional distress, loss of consortium — do not require itemised proof.
• Nominal damages: available in intentional torts where technical invasion of rights is proved but no actual harm is shown.
• Punitive damages: available where the defendant's conduct is malicious, oppressive, or recklessly indifferent to the rights of others. Constitutional limits: BMW of North America v Gore (1996) and State Farm v Campbell (2003) require that punitive awards bear a reasonable relationship to compensatory damages (single-digit ratios are generally constitutional; higher ratios require extraordinary justification).

---

07. Debates & Criticism

The Negligence/Strict Liability Divide

The deepest normative debate in tort theory concerns the justification for each form of liability. Corrective justice theorists (Jules Coleman, Ernest Weinrib) argue that tort law should hold a defendant liable only where the defendant wrongfully invaded the plaintiff's protected interests — an account that fits negligence better than strict liability. Economic analysts (Richard Posner, Guido Calabresi) argue that tort law should minimise the total social costs of accidents; strict liability achieves this by requiring the cheapest-cost avoider to internalise accident costs, regardless of fault. The products liability strict liability regime, under § 402A, is frequently justified in economic terms, yet courts applying it routinely smuggle in fault-like inquiries under the "unreasonably dangerous" rubric.

The Palsgraf Divide

The Cardozo/Andrews split in Palsgraf encapsulates a foundational disagreement: is duty a relational concept (the defendant must have acted unreasonably with respect to this plaintiff) or is it simply a consequence of unreasonable conduct toward anyone (with scope of liability limited by proximate cause)? Many scholars (notably John Goldberg and Benjamin Zipursky, in their "civil recourse" theory) argue for a relational reading that vindicates Cardozo. Others (Jane Stapleton, on the comparative side) prefer the Andrews-style unitary negligence approach. Most bar examiners test both and expect candidates to identify which approach a given jurisdiction has adopted.

Contributory vs Comparative Negligence

The shift from contributory to comparative negligence was one of the great common-law revolutions of the late twentieth century. Contributory negligence as an absolute bar is widely criticised as producing harsh results — a plaintiff one percent at fault recovers nothing. Pure comparative negligence is criticised for allowing a plaintiff 99% at fault to recover one percent of damages, arguably subsidising recklessness. Modified comparative negligence represents a political compromise. The debate continues, particularly as states consider abolishing the last-chance doctrines that softened contributory negligence.

Constitutional Tort and the FTCA

Parratt v Taylor (1981) illustrates a recurring debate: should negligent government action give rise to a constitutional tort claim under 42 U.S.C. § 1983, or should plaintiffs be channelled to state tort remedies? The Supreme Court's answer — that random, unauthorised negligence satisfies due process if post-deprivation state remedies exist — was controversial, since it potentially insulates negligent government employees from § 1983 liability wherever adequate state tort law exists. Critics argue this allows constitutional violations to go unremedied where state remedies are inadequate in practice.

Products Liability Reform

The strict liability revolution triggered a backlash. Manufacturers argue that unpredictable design-defect liability chills innovation and that juries are ill-equipped to perform risk-utility analysis. Tort reformers have pushed for caps on non-economic damages, limitations on punitive damages, and federal pre-emption of state products liability claims. The Supreme Court has engaged in this debate in cases involving FDA pre-emption of failure-to-warn claims. These debates remain live and exam-relevant.

---

08. Comparative Perspective

This section briefly situates US doctrine against common-law comparators, as true comparative analysis warrants.

English law retains a general Caparo Industries plc v Dickman [1990] three-part duty test (foreseeability, proximity, fairness/policy), which operates as a more explicit gating mechanism than US law and has been used to deny recovery in pure economic loss cases that US courts might resolve on proximate cause grounds.

Australian law, following Donoghue v Stevenson [1932] and subsequent High Court decisions (notably Sullivan v Moody (2001)), has moved toward a structured incremental approach to novel duty questions, rejecting a single unifying principle — closer to Cardozo than Andrews.

Civil law systems (France, Germany) have long imposed broader liability for fault (France's faute; Germany's § 823 BGB) but generally require a close causal link and recognise limited strict liability categories (dangerous activities, product liability under EU Product Liability Directive 85/374/EEC). The EU directive influenced US debates about strict liability standards, particularly on the continent of academic commentary.

Products liability comparatively: The EU's Product Liability Directive imposes strict liability but allows the "development risks" defence (the state of scientific knowledge at the time of distribution did not permit discovery of the defect). US law under Restatement § 402A is divided: some jurisdictions recognise a similar defence; others do not.

Workers' compensation: Most common-law jurisdictions adopted no-fault workers' compensation schemes analogous to US state regimes, suggesting convergence on this point. The UK's Industrial Injuries Disablement Benefit system and the US state schemes serve similar functions through different administrative machinery.

---

09. Essay Approach

Reading the Question

Before writing, identify: (1) What category of tort is alleged — intentional, negligent, or strict? (2) Who are the defendants — private actors, government, manufacturers? (3) What defences are on the facts? (4) What damages are sought?

Structuring a Negligence Essay

Use the four-element DBCD framework:

Duty — Identify the plaintiff and ask whether the defendant owed that plaintiff a duty of care. Apply the foreseeability-of-harm-to-this-plaintiff analysis (Palsgraf, Cardozo majority). Note any special duty rules (landowner, professional, special relationship). If the defendant is the federal government, invoke the FTCA; if an intentional tort by a law-enforcement officer, apply Millbrook v United States.

Breach — State the standard (reasonable person; professional; child). Apply Hand Formula facts if available. Consider res ipsa loquitur if no direct proof of breach exists.

Causation — Analyse but-for cause. Identify whether multiple defendants or concurrent causes are in play (substantial factor). Then analyse proximate cause: was the harm within the foreseeable risk that made the conduct negligent? Address any intervening cause and whether it is superseding. Apply the eggshell plaintiff rule if the extent of harm is greater than foreseeable.

Damages — Itemise special and general damages. Flag punitive damages only where facts support malice or recklessness.

Structuring an Intentional Tort Essay

State the tort, recite each element, apply the facts, address each available defence (consent, self-defence, necessity, authority). Remember that transferred intent permits recovery where the defendant intended a tort against one person and accidentally committed it against another.

Products Liability Essays

Identify the theory (negligence under MacPherson; strict liability under § 402A or Restatement Third). Identify the defect type (manufacturing, design, warning). Address the supply chain — is defendant a manufacturer, distributor, or retailer? Apply plaintiff's defences (comparative fault, misuse, assumption of risk). Distinguish jurisdictions where relevant.

Handling the FTCA

Where the defendant is the United States: (1) confirm the FTCA waives immunity for the claim type; (2) confirm it falls within a substantive exception (discretionary function? intentional tort? — if the latter, check whether the law-enforcement proviso of § 2680(h) applies, per Millbrook); (3) apply the law of the place where the act occurred.

---

10. Exam Traps

1. Conflating duty and proximate cause. Palsgraf is simultaneously a duty case and a proximate cause case depending on which opinion you apply. Cardozo framed the issue as duty (no duty to unforeseeable plaintiffs); Andrews framed it as proximate cause (duty runs to all, but proximate cause cuts off remote claims). Examiners will test both and penalise students who treat them as interchangeable.

2. Intent in battery and assault. Intent to harm is not required; intent to make contact (battery) or to cause apprehension (assault) suffices. A defendant who intends a contact "as a joke" commits battery if the contact is harmful or offensive.

3. Res ipsa and strict liability confusion. Res ipsa is a negligence doctrine — it permits inference of breach without specific proof. It does not eliminate the need for duty, causation, or damages, and it does not convert the claim into strict liability.

4. Contributory vs comparative jurisdiction. In the minority of states retaining contributory negligence, any plaintiff fault is a complete bar (subject to last-clear-chance). Do not apply comparative negligence in a contributory-negligence jurisdiction without flagging that you are aware of the distinction.

5. FTCA: intentional torts and the law-enforcement proviso. The default FTCA rule excludes intentional torts. Millbrook v United States holds that the law-enforcement officer proviso waives this exclusion whenever a law-enforcement officer commits an enumerated intentional tort — the officer's function at the time is irrelevant. Students frequently miss this and incorrectly conclude no FTCA claim lies.

6. MacPherson and privity. Do not cite privity as a bar to a products liability negligence claim. MacPherson eliminated privity in negligence in 1916. Privity is irrelevant in negligence and irrelevant under § 402A strict liability.

7. Eggshell plaintiff vs unforeseeable type of harm. The eggshell rule applies to extent of harm when the type is foreseeable. If the type of harm is unforeseeable, there is no proximate cause even if the extent would be recoverable under the eggshell rule once causation is established.

8. Transferred intent: which torts. Transferred intent operates among the five torts: assault, battery, false imprisonment, trespass to land, and trespass to chattels. It does not extend to IIED.

9. Parratt and § 1983 constitutional torts. Parratt v Taylor held that random, unauthorised negligent deprivation of property satisfies due process if a post-deprivation state remedy exists. Students frequently argue a § 1983 claim lies for any government negligence; Parratt forecloses this where adequate state tort remedies are available.

10. Punitive damages in negligence. Ordinary negligence does not support punitive damages. They require malice, oppression, or conscious disregard of known risks (gross negligence / recklessness). Examiners include punitive damages on facts involving mere carelessness to test whether students know this limit.

---

11. Q&A

Q1. Arthur, intending to frighten his neighbour Beth, fires a gun at the ground near her feet. The bullet ricochets and strikes Clara, a bystander. Beth is unhurt. Can Clara sue Arthur for battery?

Yes. Transferred intent allows Arthur's intent to commit an assault against Beth to be transferred to the battery against Clara. Arthur intended an act — firing the gun near Beth — with purpose to cause apprehension (assault). That intent transfers to Clara, making Arthur liable for battery (harmful contact) against her even though he had no intent to touch or frighten Clara. All elements of battery are met: intent (transferred), harmful contact, causation, and Clara's lack of consent.

Q2. Dan drives negligently and injures Eve, who has a rare blood condition making her wounds far more serious than they would be for an ordinary person. Dan argues he should only be liable for the harm an ordinary person would have suffered. Is he correct?

No. The eggshell (thin-skull) plaintiff rule holds that a tortfeasor takes the plaintiff as he finds her. Once it is established that Dan's negligence was the proximate cause of some physical harm to Eve (the type of harm — physical injury — being foreseeable from negligent driving), Dan is liable for the full extent of Eve's injuries, including the dramatically enhanced harm arising from her pre-existing condition.

Q3. Frank is a federal prisoner who alleges that a federal correctional officer, Officer Gill, sexually assaulted him while conducting a routine cell inspection. Can Frank bring an FTCA claim for this intentional tort?

Under the default FTCA intentional tort exception, assault and battery by a federal employee are excluded from the government's waiver of immunity. However, the law-enforcement officer proviso of 28 U.S.C. § 2680(h), as interpreted by the Supreme Court in Millbrook v United States (2012), waives the intentional tort exception whenever a law-enforcement officer — including federal correctional officers — commits one of the enumerated intentional torts. The Millbrook Court held that this waiver is not limited to acts performed in an investigative or law-enforcement function; it applies to the full scope of the officer's conduct. Frank therefore has a cognisable FTCA claim, subject to other FTCA requirements (administrative exhaustion, etc.).

Q4. A consumer buys a lawnmower from a retailer. Due to a defect in the blade assembly created during manufacture, the blade detaches and injures the consumer. The consumer has no contract with the manufacturer. Can the consumer sue the manufacturer in negligence?

Yes. MacPherson v Buick Motor Co established that a manufacturer owes a duty of reasonable care in the production of its products to all foreseeable users, irrespective of privity of contract. A lawnmower is a product that, if defectively manufactured, is reasonably certain to cause serious harm to those who use it. The consumer is a foreseeable user. The manufacturer's failure to detect the defect constitutes breach of the duty of reasonable care. Assuming the defect caused the injury and damages resulted, all four elements of negligence are satisfied.

Q5. Helen is injured on a railroad platform when an explosion, caused by a package of fireworks accidentally dropped during a commotion some distance away, causes a scale to fall on her. Helen sues the railroad for negligence. Who prevails, and under which analytical framework?

This is the Palsgraf hypothetical. Under Cardozo's majority approach (duty as relational/foreseeability-based), the railroad owes no duty to Helen because she was not within the foreseeable zone of danger created by the guards' act of assisting a passenger. Helen loses. Under Andrews's dissent approach, the railroad's negligence toward the passenger (if any) constitutes negligence toward the world, but the court must assess whether the causal chain from the guards' act to Helen's injury is too attenuated to constitute proximate cause. The result might differ, but both approaches have been adopted by different jurisdictions; the correct answer on an exam depends on which jurisdiction's rule the question specifies.

Q6. Ian suffers minor burns from a defendant's negligence. While recovering in hospital, a fire caused by a third party's arson destroys the wing of the hospital and Ian suffers catastrophic injuries. Is the defendant liable for the arson injuries?

Almost certainly not. The arson is an independent, unforeseeable criminal act by a third party that constitutes a superseding cause, breaking the chain of proximate causation between the defendant's negligence and the catastrophic injuries. While foreseeable intervening causes do not relieve the original tortfeasor, arson by a stranger is generally unforeseeable in this context. The defendant remains liable for the original minor burns but not for the enhanced harm caused by the superseding cause.

---

12. Further Reading

Primary Sources

• Restatement (Second) of Torts (American Law Institute, 1965) — particularly §§ 8A (intent), 13 (battery), 21 (assault), 281 (duty in negligence), 328D (res ipsa loquitur), 402A (strict products liability), 519–520 (abnormally dangerous activities).
• Restatement (Third) of Torts: Products Liability (ALI, 1998) — §§ 1–4 on defect categories.
• Restatement (Third) of Torts: Physical and Emotional Harm (ALI, 2010) — §§ 3 (negligence), 26–29 (scope of liability/proximate cause).
• Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680.

Leading Scholarly Works

• William L. Prosser & W. Page Keeton, Prosser and Keeton on the Law of Torts (5th ed. 1984) — the definitive practitioner/academic treatise; essential background.
• Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (1970) — foundational economic analysis of tort law; essential for Debates section.
• Jules Coleman, Risks and Wrongs (1992) — the leading corrective justice account.
• John C. P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010) — accessible relational account; excellent on Palsgraf.
• Richard A. Posner, Economic Analysis of Law (9th ed. 2014) — Chapter 6 covers torts from the Hand Formula perspective.

Case Law

• MacPherson v Buick Motor Co, 217 N.Y. 382 (1916)
• Palsgraf v Long Island Railroad Co, 248 N.Y. 339 (1928)
• Millbrook v United States, 567 U.S. 968 (2012)
• Parratt v Taylor, 451 U.S. 527 (1981)
• Light v United States, 220 U.S. 523 (1911)
• BMW of North America, Inc v Gore, 517 U.S. 559 (1996) — constitutional limits on punitive damages.
• State Farm Mutual Automobile Insurance Co v Campbell, 538 U.S. 408 (2003) — further limits on punitive damages ratios.

Bar Preparation

• The MBE tests torts at approximately 12.5% of total questions; the NCBE's Subject Matter Outline for the MBE identifies the precise subtopics tested and should be consulted alongside this note.
• Barbri and Themis outlines provide jurisdiction-specific nuances where the MBE approach diverges from particular state rules; pay particular attention to comparative vs contributory negligence, landowner duty rules, and products liability defect tests.