Part 1 · Introduction to Torts
A tort is a civil wrong, other than a breach of contract, for which the law gives the injured person a remedy, usually money damages. The same act can be both a crime (prosecuted by the state) and a tort (sued on by the victim).
Why tort law exists
- Compensation: restore the injured person, as far as money can.
- Deterrence: make careless or wrongful conduct expensive.
- Corrective justice: the wrongdoer, not the victim, bears the loss.
- Loss spreading: place the loss on the party best able to insure against it (manufacturers, employers).
The three levels of fault
| Category | Defendant's state of mind | Examples |
|---|
| Intentional torts | Purpose, or knowledge with substantial certainty | Battery, assault, false imprisonment, IIED, trespass, conversion |
| Negligence | Failure to use reasonable care | Car accidents, slip and fall, malpractice |
| Strict liability | No fault required | Wild animals, abnormally dangerous activities, defective products |
Common law and statutes
Tort law is mostly judge-made common law, summarized in the Restatement (Second) and (Third) of Torts. Statutes modify it in places.
California. Civil Code § 1714(a) codifies a general duty of ordinary care: everyone is responsible for injury caused by want of ordinary care. Other key statutes: Civil Code § 1431.2 (Proposition 51, several liability for non-economic damages), § 3294 (punitive damages), § 3333 (measure of tort damages), § 3342 (dog bites).
On California essays, answer under general common-law principles and add the California rule where it differs. Graders reward "Under the majority rule… However, California…".
Part 2 · Intentional Torts
Intent exists when the defendant acts with the purpose of bringing about a result, or knows with substantial certainty that the result will occur. Under transferred intent, intent to commit assault, battery, false imprisonment, trespass to land or trespass to chattels against one person, or one of these torts, transfers to another person or to another of these torts.
- Children and mentally ill persons can form intent (Garratt v. Dailey: a five-year-old who pulled a chair away knew with substantial certainty the woman would sit where it had been).
- Motive is irrelevant. A practical joke can be a battery.
- Transferred intent does not apply to IIED or conversion.
Battery
Battery is an intentional act causing a harmful or offensive contact with the plaintiff's person.
- Contact may be direct or indirect (setting a trap, throwing an object) and includes anything connected to the body: a plate in the hand (Fisher v. Carrousel Motor Hotel), a cane, a car one is driving.
- Offensive means offending a reasonable sense of personal dignity, unless the defendant knows of a special sensitivity.
- No actual harm is required; nominal and punitive damages are available. The plaintiff need not be aware at the time (a kiss on a sleeping person).
- Eggshell plaintiff: the defendant is liable for all resulting harm, even unforeseeable (Vosburg v. Putney: a light kick in class aggravated a prior injury).
The intent required is intent to make the contact, not intent to harm. "I didn't mean to hurt him" is not a defense.
Hypothetical. At a party, Dan grabs the drink out of Paula's hand and throws it on the floor to make her angry. Paula is not touched. IRAC: The issue is whether Dan committed battery. Battery is an intentional act causing a harmful or offensive contact with the plaintiff's person, which includes objects closely connected to the body. Here, Dan intentionally grabbed the glass Paula was holding. The glass was in her hand and thus part of her person, and snatching it in anger offends a reasonable sense of dignity. Therefore, Dan is liable for battery, even though Paula suffered no physical harm.
Assault
Assault is an intentional act creating in the plaintiff a reasonable apprehension of an imminent harmful or offensive contact.
- Apprehension means awareness, not fear. A boxer can be assaulted.
- Imminent: words alone are usually not enough; threats of future harm are not assault. Words can negate an act ("If you weren't my friend, I'd hit you").
- Apparent ability suffices: an unloaded gun the plaintiff reasonably believes is loaded.
- The plaintiff must be aware of the act when it happens.
If the defendant swings and hits, discuss both battery and assault, unless the plaintiff did not see it coming (then battery only).
False imprisonment
False imprisonment is an intentional act or omission that confines or restrains the plaintiff to a bounded area, where the plaintiff knows of the confinement or is harmed by it.
- Methods: physical barriers, force, threats of force, invalid use of legal authority, refusing to release (duty to release).
- No reasonable means of escape known to the plaintiff. A route that is dangerous, disgusting or hidden is not reasonable.
- Moral pressure, or threats of future harm, are not confinement. Blocking one route of a public street is not confinement.
- Shopkeeper's privilege: a merchant with reasonable grounds may detain a suspected shoplifter in a reasonable manner, for a reasonable time, to investigate.
California. Penal Code § 490.5(f) codifies the merchant's privilege: reasonable detention, for a reasonable time, on probable cause, to investigate theft.
Intentional infliction of emotional distress (IIED)
IIED requires extreme and outrageous conduct by the defendant, intent to cause or reckless disregard of causing severe emotional distress, causation, and severe emotional distress suffered by the plaintiff.
- Outrageous: beyond all bounds of decency. Insults and indignities usually are not. Conduct becomes outrageous when repeated, by a person in authority (employer, landlord), by a common carrier or innkeeper, or aimed at a known sensitive person (child, elderly, pregnant).
- Severe distress: more than embarrassment. Physical symptoms help but are not required.
- Bystanders: a third person may recover if present when the conduct occurs, a close relative of the victim, and the defendant knows of the presence; or, for non-relatives, if bodily harm results.
- Public figures suing over speech must show a false statement of fact made with actual malice (Hustler Magazine v. Falwell).
Trespass to land
Trespass to land is an intentional physical invasion of the land of another.
- The intent required is intent to enter that land, not intent to trespass. A mistake about ownership is no defense.
- Invasion includes entering, remaining after permission ends, throwing objects, building a fence on the land, and intrusions into airspace or below the surface within reasonable limits.
- No damage is required. Nominal damages, plus actual harm and, if malicious, punitive damages.
- Continuing trespass (a structure left on the land) supports an injunction. See the February 2025 retest essay in the Essays tab.
Trespass to chattels and conversion
Trespass to chattels is an intentional interference with the plaintiff's right of possession of personal property, by dispossessing the plaintiff or damaging or using the chattel. Conversion is an intentional interference with the plaintiff's personal property so serious that it justifies requiring the defendant to pay its full value.
Factors for conversion: duration and extent of control, the defendant's intent and good faith, harm to the chattel, and inconvenience to the plaintiff. Remedies: trespass to chattels, actual damages or loss of use; conversion, fair market value at the time of conversion (a forced sale), or replevin.
A good-faith buyer of stolen goods is a converter. Mistake is no defense to conversion.
Defenses to intentional torts
| Defense | Rule |
|---|
| Consent | Express or implied (custom, conduct, emergency). Requires capacity. Exceeding its scope, or consent obtained by fraud about the essential nature of the act, is no consent. |
| Self-defense | Reasonable belief of imminent attack; force reasonably necessary; deadly force only against deadly force. Majority: no duty to retreat. Not available to the initial aggressor. |
| Defense of others | Reasonable belief that the third person could defend himself; same force he could use. |
| Defense of property | Reasonable force to prevent a tort against property, after a request to stop unless futile. Never deadly force or spring guns (Katko v. Briney). |
| Recapture of chattels | Fresh pursuit, demand first unless futile, reasonable non-deadly force, only against the wrongdoer. |
| Necessity | Public necessity (to protect the community): complete defense. Private necessity (to protect self or property): defense to trespass, but the defendant pays actual damage (Vincent v. Lake Erie); the owner may not expel (Ploof v. Putnam). |
| Arrest, discipline | Privileged when made with legal authority, reasonable force. |
Part 3 · Negligence
To prove negligence, the plaintiff must establish that the defendant owed a duty of care, breached that duty, the breach was the actual and proximate cause of the plaintiff's injury, and the plaintiff suffered damages.
Duty: to whom?
A duty of care is owed to all foreseeable plaintiffs. Under the majority (Cardozo) view, a plaintiff is foreseeable only if within the zone of danger created by the defendant's conduct. Under the minority (Andrews) view, a defendant owes a duty to everyone injured as a result of the breach.
Source: Palsgraf v. Long Island Railroad. Rescuers are foreseeable plaintiffs ("danger invites rescue").
Standard of care
- Reasonable prudent person under the same or similar circumstances. Objective: the defendant's low intelligence does not lower it. Physical characteristics (blindness) are taken into account. Superior knowledge raises it.
- Children: a child of like age, intelligence and experience. Children under about 5 are often incapable of negligence. Children engaged in adult activities (driving) are held to the adult standard.
- Professionals: the knowledge and skill of a member of the profession in good standing, often in the same or similar community; national standard for specialists. Doctors must obtain informed consent (disclose material risks).
- Common carriers and innkeepers: highest duty of care toward passengers and guests.
- Emergencies: reasonable person in the same emergency, unless the defendant created it.
Special duties: land possessors
| Entrant (common law) | Duty owed |
|---|
| Undiscovered trespasser | None |
| Discovered or anticipated trespasser | Warn of or make safe known, artificial, highly dangerous conditions not obvious |
| Child trespasser (attractive nuisance) | Reasonable care if: dangerous artificial condition the owner knows of, owner knows children are likely to trespass, children cannot appreciate the risk, burden of eliminating it is slight compared to the risk |
| Licensee (social guest) | Warn of known dangerous conditions not obvious; no duty to inspect |
| Invitee (business or public purpose) | Reasonable care, including reasonable inspection to discover dangers |
California. Rowland v. Christian (1968) abolished the trespasser, licensee and invitee categories. A land possessor owes everyone reasonable care under Civil Code § 1714; the entrant's status is only a factor. Civil Code § 847 bars liability to a person injured while committing certain felonies on the property. On an essay: state the common-law categories, then the California rule.
Special duties: no duty to act, and its exceptions
There is generally no duty to act affirmatively or to rescue. A duty arises when there is a special relationship (carrier-passenger, innkeeper-guest, parent-child, employer-employee), when the defendant created the peril, when the defendant voluntarily undertakes to help (then must act reasonably), or when a statute requires action.
California. Tarasoff v. Regents of the University of California (1976): a therapist whose patient presents a serious danger of violence to a reasonably identifiable victim has a duty to use reasonable care to protect that victim. Civil Code § 43.92 now limits the duty to a serious threat communicated to the therapist, discharged by reasonable efforts to warn the victim and law enforcement.
Negligent infliction of emotional distress (NIED)
A plaintiff in the zone of physical danger created by the defendant's negligence may recover for emotional distress, usually requiring physical symptoms. A bystander outside the zone may recover only under the jurisdiction's bystander rule.
California. Thing v. La Chusa (1989): a bystander recovers only if (1) closely related to the injury victim, (2) present at the scene of the injury-producing event when it occurs and then aware that it is causing injury to the victim, and (3) suffers serious emotional distress beyond that of a disinterested witness. A mother who arrived after the accident cannot recover.
Negligence per se
The violation of a statute establishes the duty and breach if the statute provides a criminal penalty, sets a clear standard of conduct, was designed to prevent the type of harm suffered, and the plaintiff is within the class of persons it protects. Violation is excused when compliance was impossible or more dangerous than violation.
California. Evidence Code § 669 makes the violation a rebuttable presumption of negligence, not conclusive proof.
Compliance with a statute does not prove due care; it is only evidence.
Breach
- Hand formula (United States v. Carroll Towing): breach if the burden of precautions (B) is less than the probability of harm (P) times the gravity of the loss (L).
- Custom is evidence, not conclusive: a whole industry may lag (The T.J. Hooper), except in medical malpractice, where the profession's custom sets the standard.
Res ipsa loquitur permits an inference of negligence when the accident is of a type that ordinarily does not occur without negligence, and the instrumentality was in the defendant's exclusive control, with the plaintiff not responsible.
Byrne v. Boadle: a flour barrel falls from a warehouse window. Ybarra v. Spangard (California): an unconscious surgical patient may invoke res ipsa against all the doctors and nurses who had control of him.
California. Evidence Code § 646 makes res ipsa a presumption affecting the burden of producing evidence.
Actual causation
- But-for test: the injury would not have occurred but for the defendant's conduct.
- Substantial factor test: when two causes each alone would have caused the harm (two fires merge).
- Alternative causes: when two defendants were negligent and only one caused the harm, the burden shifts to each to prove it was not him (Summers v. Tice, California: two hunters).
- Market share liability: when an identical defective product from many makers cannot be traced, defendants pay according to market share (Sindell v. Abbott Laboratories, California: DES).
California. California juries are instructed on the substantial factor test for causation generally.
Proximate causation
A defendant is liable only for harms within the risk that made the conduct negligent, meaning foreseeable harms. An intervening cause that is foreseeable does not break the chain; an unforeseeable, independent superseding cause does.
- Foreseeable intervening causes: later medical malpractice, negligent rescue, reactions to the defendant's act, subsequent disease or accidents caused by weakened condition.
- Usually superseding: unforeseeable criminal acts, acts of God, intentional torts of third parties (unless the defendant's negligence created the opportunity).
- Eggshell plaintiff: once some harm is foreseeable, the defendant takes the plaintiff as he finds him.
Damages
Negligence requires actual damage: physical injury or property damage. Nominal damages are not available, and pure economic loss without injury is generally not recoverable.
Professional negligence
Malpractice requires an expert to establish the professional standard and breach, except when the negligence is obvious to a layperson (a sponge left in the patient). Informed consent: the doctor must disclose information a reasonable patient would want to make the decision.
California. MICRA (Civil Code § 3333.2) caps non-economic damages in medical malpractice cases; the 2022 amendment (AB 35) raised the caps and increases them each year. Check the current amount before citing a figure.
Hypothetical. Dana, a delivery driver, texts while driving in violation of a statute banning handheld phone use and runs a red light, striking Paul. IRAC (duty and breach): Dana owed a duty of reasonable care to Paul, a pedestrian within the zone of danger of her driving. Under negligence per se, the statute imposes a criminal penalty, sets a clear standard, aims to prevent traffic collisions, and protects pedestrians like Paul, so its violation establishes breach; in California, it creates a presumption of negligence. Independently, running a red light while texting falls below the care of a reasonable driver. Dana breached.
Part 4 · Defenses to Negligence
Contributory negligence (a minority of jurisdictions) completely bars a plaintiff whose own negligence contributed to the injury, subject to the last clear chance doctrine. Under comparative negligence, the plaintiff's recovery is reduced by his percentage of fault: in pure comparative jurisdictions he recovers even if mostly at fault; in modified jurisdictions he is barred if his fault is 50% or 51% or more.
California. Li v. Yellow Cab Co. (1975) adopted pure comparative negligence. A plaintiff 80% at fault recovers 20% of his damages.
Assumption of risk: a plaintiff who knew of a specific risk and voluntarily proceeded to face it may be barred. Express assumption (a written waiver) is enforceable unless it covers gross negligence or intentional conduct, or violates public policy.
California. Knight v. Jewett (1992): primary assumption of risk, where the defendant owes no duty to protect against risks inherent in an activity (contact sports), is a complete bar. Secondary assumption of risk, where the defendant owed a duty and the plaintiff knowingly encountered the risk, is merged into comparative fault. Tunkl v. Regents (1963): releases are void when the activity involves the public interest (hospitals).
Consent, self-defense, defense of property and necessity are defenses to intentional torts; see Part 2. They are not defenses to negligence in the same way, but a plaintiff's consent to a risk is analyzed as assumption of risk.
Comparative fault applies to negligence and, in California, to strict products liability (Daly v. General Motors). It does not reduce damages for intentional torts.
Part 5 · Strict Liability and Products Liability
Animals
An owner of a wild animal is strictly liable for injuries caused by its dangerous propensities. An owner of a domestic animal is strictly liable only if he knows or has reason to know of its dangerous propensities; otherwise negligence applies.
California. Civil Code § 3342: a dog owner is strictly liable for bites in a public place or lawfully in a private place, regardless of prior viciousness.
Abnormally dangerous activities
A defendant engaged in an abnormally dangerous activity is strictly liable for harm resulting from the risk that makes the activity dangerous. An activity is abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is used and is not a matter of common usage in the community.
Examples: blasting, storing explosives, crop dusting, toxic waste. Restatement § 520 factors include the degree of risk, the inability to eliminate it with care, uncommon usage, inappropriateness to the location, and value to the community. Origin: Rylands v. Fletcher (a reservoir floods a mine).
Products liability: the five theories
A plaintiff may sue for a defective product in intentional tort, negligence (MacPherson v. Buick eliminated privity), breach of warranty (express, merchantability, fitness), and strict products liability, the most tested theory.
Strict products liability: a commercial supplier (manufacturer, distributor or retailer) is liable when it sells a product in a defective condition unreasonably dangerous to users, the defect existed when the product left its control, and the defect caused the plaintiff's injury while the product was used in an intended or reasonably foreseeable way.
California. Greenman v. Yuba Power Products (1963) created strict products liability for defective products (a Shopsmith power tool). Privity is not required: any foreseeable user or bystander may sue.
The three types of defect
| Defect | Test | Example |
|---|
| Manufacturing | The product departs from its intended design and is more dangerous than the consumer would expect. | One bottle in a batch has a crack. |
| Design | The whole product line is dangerous by design. Tests: consumer expectations, and risk-utility (a feasible, safer, economical alternative existed). | A car seat that collapses when reclined. |
| Failure to warn | Inadequate warnings or instructions about non-obvious risks known or knowable to the maker. | A drug without a warning of a known side effect. |
California. Barker v. Lull Engineering (1978): a design is defective if (1) the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) the design caused the injury and the defendant fails to prove that the benefits of the design outweigh its risks. The burden shifts to the defendant on risk-benefit. Soule v. General Motors (1994) limits the consumer-expectations test to cases within the ordinary experience of consumers.
Defenses
- Misuse: a defense only if unforeseeable. Foreseeable misuse must be designed against. (Central to the July 2024 essay on the reclined car seat.)
- Comparative fault: reduces recovery (California, Daly v. General Motors).
- Assumption of risk: knowingly using a product with a known defect.
- Substantial alteration after the product left the defendant's control.
- Compliance with government safety standards is evidence, not a complete defense, unless federal law preempts.
Part 6 · Other Torts
Defamation
At common law, defamation requires a defamatory statement of fact, of and concerning the plaintiff, published to a third person, causing damage to reputation. When the plaintiff is a public figure or the statement involves a matter of public concern, the plaintiff must also prove falsity and fault.
- Libel (written, recorded): general damages presumed. Slander (spoken): the plaintiff must prove special (economic) damages, unless slander per se: statements about a crime of moral turpitude, a loathsome disease, the plaintiff's business or profession, or a woman's unchastity.
- Public officials and public figures: actual malice, meaning knowledge of falsity or reckless disregard for the truth (New York Times v. Sullivan). Private person, matter of public concern: at least negligence; presumed or punitive damages require actual malice (Gertz v. Robert Welch).
- Defenses: truth; consent; absolute privilege (judicial proceedings, legislators, spouses); qualified privilege (reports to police, references), lost if abused.
- Opinions are protected unless they imply false facts.
California. Code of Civil Procedure § 425.16 (anti-SLAPP) allows a defendant sued over speech on a public issue to move early to strike the claim; the plaintiff must show a probability of prevailing.
Invasion of privacy
| Tort | Elements |
|---|
| Appropriation | Use of the plaintiff's name or likeness for the defendant's commercial advantage without consent. California: Civil Code § 3344 (right of publicity). |
| Intrusion upon seclusion | Intrusion into the plaintiff's private affairs that would be highly offensive to a reasonable person. |
| False light | Publicity placing the plaintiff in a false light highly offensive to a reasonable person; actual malice for matters of public interest. |
| Public disclosure of private facts | Publicity of private information, highly offensive to a reasonable person and not newsworthy. |
Misrepresentation
Intentional misrepresentation (fraud, deceit) requires a misrepresentation of material fact, scienter (knowledge of falsity or reckless disregard), intent to induce the plaintiff's reliance, actual and justifiable reliance, and damages. Negligent misrepresentation applies to a false statement made carelessly in a business or professional capacity to a plaintiff the defendant intended to inform.
Concealment and half-truths qualify. Silence generally does not, unless there is a fiduciary or confidential relationship. A fiduciary (agent, trustee) has a duty of full disclosure. Fraud supports punitive damages and equitable relief such as rescission, constructive trust and disgorgement (see July 2024, Question 5).
Nuisance
A private nuisance is a substantial and unreasonable interference with another's use and enjoyment of land. A public nuisance is an unreasonable interference with a right common to the public; a private party may sue only if he suffers a special injury different in kind from the public's.
Substantial means offensive to an average person, not a hypersensitive one. Unreasonable: the severity of the harm outweighs the utility of the conduct. "Coming to the nuisance" is a factor, not a bar. Remedies: damages, injunction (balancing of hardships).
California. Civil Code § 3479 defines nuisance broadly, and § 3482 provides that nothing done under the express authority of a statute is a nuisance.
Vicarious liability
Under respondeat superior, an employer is liable for the torts of an employee committed within the scope of employment. A minor detour is within the scope; a frolic, a substantial personal deviation, is not. Intentional torts are within the scope when they are a foreseeable outgrowth of the job, are authorized, or are committed to benefit the employer.
- Independent contractors: the hirer is generally not liable, except for non-delegable duties (inherently dangerous activities, duties to the public, premises open to the public) and its own negligent hiring or supervision.
- Parents are not vicariously liable at common law, except under statute or for their own negligent supervision. California: Civil Code § 1714.1 (willful misconduct of a minor, capped).
- Car owners: California Vehicle Code § 17150 makes an owner liable, in limited amounts, for permissive users.
- Joint enterprise and partnerships: each member is liable for the torts of the others within the enterprise.
Joint and several liability
Under joint and several liability, when two or more defendants cause an indivisible injury, the plaintiff may recover the full amount from any one of them, who may then seek contribution from the others in proportion to fault. Indemnity shifts the entire loss to another, for example from a retailer to the manufacturer.
California. Proposition 51 (Civil Code § 1431.2): each defendant is jointly and severally liable for economic damages, but only severally, in proportion to fault, for non-economic damages (pain and suffering).
Part 7 · Damages and Remedies
Compensatory damages restore the plaintiff to the position he occupied before the tort. They include economic (special) damages, such as medical expenses and lost earnings, past and future, and non-economic (general) damages, such as pain and suffering and emotional distress.
- Certainty: damages must be proved with reasonable certainty; future damages are reduced to present value.
- Mitigation (avoidable consequences): the plaintiff cannot recover for harm he could have avoided with reasonable effort, for example by seeking medical treatment.
- Collateral source rule: damages are not reduced by insurance or benefits the plaintiff receives from independent sources. California: Howell v. Hamilton Meats (2011) limits past medical damages to amounts actually paid, not billed.
- Nominal damages: for intentional torts without actual harm. Not available in negligence.
Punitive damages may be awarded when the defendant's conduct was wanton, willful, malicious or reckless. They require actual damages in most jurisdictions and are limited by due process: ratios above single digits to compensatory damages are rarely constitutional (State Farm v. Campbell).
California. Civil Code § 3294: punitive damages require clear and convincing evidence of oppression, fraud or malice. Against an employer, an officer, director or managing agent must have authorized, ratified or committed the conduct, or the employer must have knowingly employed an unfit employee with conscious disregard.
Death cases
Survival action: the decedent's own claims continue through the estate (California: Code of Civil Procedure § 377.30). Wrongful death: heirs recover their own losses from the death, such as support and companionship (California: § 377.60).
Equitable remedies in tort
Injunctions (to stop a continuing trespass or nuisance), restitution and constructive trust (fraud, conversion) are covered fully in the Remedies subject. For a permanent injunction, the plaintiff shows an inadequate legal remedy, a property interest or protectable right, feasibility of enforcement, a balancing of hardships in his favor, and no defenses (laches, unclean hands). For a preliminary injunction: likelihood of success on the merits and irreparable harm, weighed against the hardship to the defendant.
California Torts essays very often end with a Remedies call. Always organize: legal remedies (compensatory, punitive, nominal), restitutionary remedies, equitable remedies, each with its elements.
Part 1 · Foundations of Criminal Liability
Every crime has the same building blocks: a guilty act (actus reus), a guilty mind (mens rea), their concurrence, and, for result crimes like homicide, causation. On the bar, define each crime by its elements and match each element to a fact.
The actus reus requires a voluntary physical act, or an omission where there is a legal duty to act. A legal duty to act arises from a statute, a contract, a special relationship (parent and child, spouses), voluntary assumption of care that isolates the victim, or the defendant's creation of the peril.
Reflexes, convulsions and acts while unconscious are not voluntary. A moral duty is not enough: a stranger who watches a child drown commits no crime.
Mental states
| Common law | Meaning | Examples |
|---|
| Specific intent | Intent to do something beyond the act itself, or to achieve a result | Solicitation, conspiracy, attempt, first-degree premeditated murder, assault (attempted battery), larceny, robbery, burglary, embezzlement, false pretenses, forgery |
| Malice | Intent or reckless disregard of an obvious risk | Common law murder, arson |
| General intent | Awareness of the nature of the act | Battery, rape, kidnapping, false imprisonment |
| Strict liability | No mental state required | Regulatory (public welfare) offenses, statutory rape |
Under the Model Penal Code, a person acts purposely when it is his conscious object to engage in conduct or cause a result; knowingly when he is aware his conduct is of that nature or that the result is practically certain; recklessly when he consciously disregards a substantial and unjustifiable risk; and negligently when he should be aware of such a risk.
The category matters because two defenses work only against specific intent crimes: voluntary intoxication and an unreasonable mistake of fact. Identify the intent category before discussing defenses.
Concurrence and causation
The defendant must have the required mental state at the time of the act. For result crimes, the act must be the actual (but-for) cause and the proximate cause of the result; an unforeseeable intervening act breaks the chain, but the defendant takes the victim as he finds her.
California. Penal Code § 20: every crime requires a union, or joint operation, of act and intent, or criminal negligence. Penal Code § 7 defines willfully, knowingly, maliciously and negligently. California follows the common-law specific/general intent distinction for defenses (Penal Code §§ 26, 29.4).
Part 2 · Homicide
Murder is the unlawful killing of a human being with malice aforethought. Malice exists with (1) intent to kill, (2) intent to inflict great bodily injury, (3) reckless indifference to an unjustifiably high risk to human life (depraved heart), or (4) intent to commit an inherently dangerous felony (felony murder).
Degrees of murder
First-degree murder is a killing that is willful, deliberate and premeditated, or that occurs during an enumerated felony, or by a specified method. All other murder is second-degree murder.
Premeditation requires some reflection; it can be brief, but the defendant must have considered the killing beforehand. Evidence: planning, motive, manner of killing.
California. Penal Code § 187 defines murder; § 188 defines express malice (intent to kill) and implied malice (no considerable provocation, or an abandoned and malignant heart). § 189 makes first-degree any murder by destructive device, poison, lying in wait, torture, or premeditation, or committed in the perpetration of arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking and listed sex offenses. Implied malice supports second-degree murder for drunk driving with awareness of the danger (People v. Watson, 1981).
Felony murder
A killing committed during the commission or attempted commission of an inherently dangerous felony is murder. Limits: the felony must be independent of the killing (not merged, e.g., not assault), the death must be a foreseeable result, the killing must occur before the felon reaches a place of temporary safety, and co-felons are not liable for the death of a co-felon killed by a victim or police under the agency rule.
- BARRK: Burglary, Arson, Robbery, Rape, Kidnapping are the classic enumerated felonies.
- Agency theory (majority and California, People v. Washington, 1965): felony murder applies only when a felon or accomplice is the killer. Proximate cause theory (minority): liability for any death proximately caused by the felony, including a police officer's bullet. California may still convict under provocative-act murder when a felon's malicious conduct provokes the lethal response.
California. Senate Bill 1437 (effective 2019) amended Penal Code §§ 188 and 189: a participant in a felony is liable for murder only if he was the actual killer, aided the killing with intent to kill, or was a major participant acting with reckless indifference to human life (§ 189(e)). Malice may not be imputed merely from participation in a crime, and the natural and probable consequences doctrine no longer supports murder. Always add this to a California felony-murder answer.
Manslaughter
Voluntary manslaughter is an intentional killing in the sudden heat of passion upon adequate provocation, without time to cool off, where the defendant did not in fact cool off. Involuntary manslaughter is an unintentional killing caused by criminal negligence, or during an unlawful act not amounting to a felony that supports felony murder (misdemeanor manslaughter).
- Adequate provocation: would cause a reasonable person to lose self-control. Classic examples: serious battery, discovery of a spouse in adultery. Words alone usually are not enough.
- Imperfect self-defense (California): an honest but unreasonable belief in the need to defend reduces murder to voluntary manslaughter (In re Christian S., 1994).
Homicide staircase for every death on an essay: causation → murder (all four malice theories) → degree → voluntary manslaughter → involuntary manslaughter. Discuss the lesser forms even if you conclude murder. See the October 2023 essay in the Essays tab.
Part 3 · Crimes Against the Person
Battery is the unlawful application of force to the person of another resulting in bodily injury or an offensive touching. Assault is either an attempted battery or the intentional creation of a reasonable apprehension of imminent bodily harm.
California. Penal Code § 240 defines assault as an unlawful attempt, coupled with present ability, to commit a violent injury on another; § 242 defines battery. California recognizes only the attempted-battery form of assault, not the apprehension form.
False imprisonment is the unlawful confinement of a person without valid consent. Kidnapping is unlawful confinement that involves either moving the victim or concealing the victim in a secret place.
California. Penal Code § 207: kidnapping requires moving the victim a substantial distance, judged by the totality of circumstances, including whether the movement increased the risk of harm (People v. Martinez, 1999). Aggravated forms: kidnapping for ransom (§ 209(a)) and kidnapping to commit robbery or a sex offense (§ 209(b)).
Mayhem: permanent dismemberment or disfigurement (California Penal Code § 203). Rape: unlawful sexual intercourse without consent, by force, threat, or with a person unable to consent (California Penal Code § 261). Consent obtained by fraud about the nature of the act is no consent.
Part 4 · Property Crimes
Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner of it.
- Continuing trespass: if the defendant took the property wrongfully but without intent to steal, and later forms that intent, larceny occurs at that moment.
- Taking property believing it is one's own, or intending to borrow it and return it, is not larceny.
Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of it. False pretenses is obtaining title to the property of another by an intentional false statement of past or existing fact, with intent to defraud. Larceny by trick is obtaining only possession by fraud.
| Crime | How the defendant got the property | What he obtained |
|---|
| Larceny | Trespassory taking | Possession |
| Larceny by trick | Fraud | Possession only |
| False pretenses | Fraud | Title |
| Embezzlement | Lawful possession, then conversion | Possession, later converted |
California. Penal Code § 484 consolidates larceny, embezzlement, false pretenses and larceny by trick into the single crime of theft; grand theft (§ 487) generally involves property over $950. Prosecutors may charge "theft" without choosing the common-law label, but essays still expect the common-law analysis.
Robbery is larceny from the person or presence of the victim, by force or by putting the victim in fear.
California. Penal Code § 211. Force or fear used to retain the property or escape after a peaceful taking also makes it robbery (People v. Estes, 1983). Robbery is a continuing offense until the robber reaches a place of temporary safety.
Common-law burglary is the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony inside.
California. Penal Code § 459: entering any building, room, locked vehicle and other listed structures with intent to commit larceny or any felony. No breaking, no nighttime and no dwelling requirement; entry into an inhabited dwelling is first-degree burglary (§ 460). The intent must exist at the time of entry.
Receiving stolen property: receiving possession of stolen property known to be stolen, with intent to permanently deprive (California § 496). Extortion: obtaining property by threats of future harm or exposure (§ 518). Arson: common law, malicious burning of the dwelling of another; California § 451, willfully and maliciously setting fire to any structure, forest land or property.
Robbery vs. larceny: ask whether force or fear was used to take (or, in California, to keep) the property. If the force came first for another reason and the intent to steal formed later, argue both, as in the October 2023 gold-chain facts.
Part 5 · Inchoate Crimes
Solicitation is asking, encouraging or commanding another to commit a crime, with the intent that the other person commit it. It is complete when the request is made, even if refused.
Conspiracy is an agreement between two or more persons to commit an unlawful act, with the intent to agree and the intent to achieve the objective. Most jurisdictions require an overt act in furtherance of the agreement.
- Pinkerton rule (Pinkerton v. United States, 1946): each conspirator is liable for crimes committed by co-conspirators that are in furtherance of the conspiracy and foreseeable.
- Bilateral vs. unilateral: common law requires two genuine agreeing parties (no conspiracy with an undercover officer); the MPC allows a unilateral conspiracy.
- Withdrawal requires notice to all co-conspirators; it cuts off liability for later crimes but, at common law, not for the conspiracy itself.
- Wharton's rule: no conspiracy when the crime by definition requires two people (adultery, dueling).
- Conspiracy does not merge into the completed crime: a defendant can be convicted of both.
California. Penal Code §§ 182 and 184 require an overt act by one of the conspirators. California applies vicarious liability for foreseeable crimes in furtherance of the conspiracy.
Attempt requires specific intent to commit the crime and an act that goes beyond mere preparation: under the majority (MPC) test, a substantial step strongly corroborative of the intent; under the common-law proximity test, dangerously close to completion.
- There is no attempt of a crime that requires only recklessness or negligence: no attempted involuntary manslaughter, no attempted felony murder.
- Factual impossibility (the pocket was empty) is no defense. Legal impossibility (the act is not a crime) is a defense.
- Abandonment: no defense at common law; under the MPC, a complete and voluntary renunciation is a defense.
California. Penal Code § 21a: attempt requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission, beyond mere preparation.
Merger: solicitation and attempt merge into the completed crime; conspiracy does not.
Part 6 · Parties to a Crime
An accomplice is a person who aids, abets or encourages the principal with the intent that the crime be committed. An accomplice is liable for the crime and for other crimes that were the natural and probable consequence of it. An accessory after the fact knowingly assists a felon to avoid arrest, trial or punishment, after the felony was completed.
- Mere presence, even with knowledge, is not enough. Providing goods or services with knowledge is usually not enough unless the defendant has a stake in the venture or the crime is very serious.
- Withdrawal before the crime: repudiate encouragement, or neutralize assistance, or notify the police.
- An accessory after the fact is punished separately, usually less severely.
California. Penal Code § 31 defines principals to include aiders and abettors; § 32 defines accessories after the fact. Under People v. Chiu (2014), an aider and abettor cannot be convicted of first-degree premeditated murder under the natural and probable consequences doctrine; SB 1437 later removed that doctrine for murder entirely (§ 188(a)(3)).
Part 7 · Defenses
Self-defense permits non-deadly force when the defendant reasonably believes it is necessary to protect against imminent unlawful force, and deadly force only against a reasonably perceived threat of death or serious bodily injury. The majority, including California, imposes no duty to retreat. The initial aggressor regains the right only by withdrawing and communicating it, or when the victim escalates to deadly force.
Duress excuses a crime committed because of a threat of death or serious bodily injury to the defendant or a family member, but it is never a defense to intentional murder. Necessity justifies a crime committed to avoid a greater harm, when the defendant did not create the danger; it does not justify killing an innocent person (Regina v. Dudley and Stephens).
Insanity under the M'Naghten test excuses a defendant who, because of a disease of the mind, did not know the nature and quality of the act or did not know that it was wrong. Other tests: irresistible impulse, Durham (product of mental illness), and the MPC (lacked substantial capacity to appreciate wrongfulness or conform conduct).
California. Penal Code § 25(b) adopts M'Naghten, read disjunctively: either prong suffices (People v. Skinner, 1985). The defendant must prove insanity by a preponderance of the evidence in a separate phase of trial.
Voluntary intoxication is a defense only to specific intent crimes, when it prevents the defendant from forming the intent. Involuntary intoxication may be a defense to any crime if it makes the defendant insane.
California. Penal Code § 29.4: evidence of voluntary intoxication is admissible solely on whether the defendant actually formed a required specific intent, premeditated, or harbored express malice. It cannot negate implied malice.
Mistake of fact is a defense if it negates the required mental state: any honest mistake for specific intent crimes; only a reasonable mistake for general intent and malice crimes; no mistake for strict liability crimes. Mistake of law is generally no defense, except reliance on an official statement of law later held invalid.
Entrapment applies when the criminal design originated with law enforcement and the defendant was not predisposed to commit the crime (subjective test, federal majority).
California. California uses the objective entrapment test: would the police conduct likely induce a normally law-abiding person to commit the offense? The defendant's predisposition is irrelevant (People v. Barraza, 1979).
Infancy: common law, under 7 no liability, 7 to 14 rebuttable presumption of incapacity, over 14 fully capable. California Penal Code § 26: a child under 14 is presumed incapable unless there is clear proof the child knew the act was wrong.
Part 1 · Sources of American Law
American law comes from four sources, ranked by authority. When two conflict, the higher one wins.
| Rank | Source | Federal example | California example |
|---|
| 1 | Constitutions | U.S. Constitution and amendments | California Constitution |
| 2 | Statutes | United States Code (e.g., the Immigration and Nationality Act, 8 U.S.C.) | California codes: Civil Code, Penal Code, Code of Civil Procedure, Evidence Code |
| 3 | Regulations | Code of Federal Regulations (e.g., 8 C.F.R.) | California Code of Regulations |
| 4 | Case law (common law and interpretation) | Decisions of federal courts | Decisions of California courts |
Under the Supremacy Clause, the U.S. Constitution, federal statutes and treaties prevail over conflicting state law. Within a system, a constitution prevails over a statute, a statute over a regulation, and a statute over a common-law rule.
Common law is law made by judges through decisions, built precedent by precedent. A statute can codify, modify or abolish a common-law rule; courts then interpret the statute. Secondary sources (Restatements, treatises, law reviews) explain the law but do not bind courts; Restatements are often adopted by courts and cited as persuasive.
Part 2 · The Court Systems and Precedent
| Level | Federal courts | California courts |
|---|
| Trial | U.S. District Courts (94 districts) | Superior Courts (one per county) |
| Intermediate appeal | U.S. Courts of Appeals (13 circuits; California is in the Ninth Circuit) | Courts of Appeal (six appellate districts) |
| Highest | U.S. Supreme Court | Supreme Court of California |
Under stare decisis, a court must follow the decisions of higher courts in the same jurisdiction (binding or mandatory authority). Decisions of other jurisdictions, lower courts or courts of equal rank are only persuasive authority.
- The holding (the rule necessary to decide the case) binds; dicta (other remarks) do not.
- A U.S. Supreme Court decision on federal law binds every court. A California Supreme Court decision binds all California courts.
- In California, a published Court of Appeal decision binds all trial courts statewide (Auto Equity Sales v. Superior Court, 1962); unpublished opinions generally may not be cited (California Rules of Court, rule 8.1115).
- Immigration courts and the Board of Immigration Appeals are administrative tribunals within the Department of Justice, not Article III courts; their decisions are reviewed by the federal courts of appeals.
Part 3 · Reading and Briefing Cases
A judicial opinion is written for lawyers, not students. Read it three times: once quickly for the story, once for the holding and reasoning, once to brief it.
A case brief contains the facts the court relied on, the procedural history, the issue framed as a question, the rule of law, the court's reasoning, the holding, and the disposition.
- Caption and citation: parties, court, year. Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).
- Facts: only the facts that mattered to the result.
- Procedural history: who sued whom, who won below, who appealed.
- Issue: a yes-or-no question combining the legal question and the key facts.
- Rule: the legal principle applied.
- Reasoning: why the court applied the rule this way: policy, precedent, logic.
- Holding and disposition: the answer to the issue, then affirmed, reversed or remanded.
- Concurrences and dissents: one line each; dissents often become the future majority.
Issue (weak): "Was the railroad negligent?" Issue (strong): "Does a railroad whose guards negligently dislodge a package owe a duty of care to a passenger standing far away, outside any foreseeable zone of danger?"
Brief in your own words. NWCU requires case briefs as pass/fail assignments; copying a commercial brief is plagiarism.
Part 4 · Legal Analysis: IRAC and Rule Synthesis
IRAC: state the Issue, state the Rule, Apply the rule to the facts element by element, and Conclude. The analysis, not the conclusion, earns most of the points.
Rule synthesis
When several cases address the same question, combine them into one rule that explains all their results. Example: Case A finds a duty to a rescuer; Case B finds no duty to a bystander a mile away. Synthesized rule: a duty is owed to persons foreseeably endangered, including rescuers, but not to remote plaintiffs.
Analogy and distinction
"As in Garratt v. Dailey, where a child who moved a chair knew with substantial certainty the woman would fall, Dex knew Ana was sitting down when he pulled the chair. Unlike the plaintiff in Vosburg, however, Ana had no prior injury, so the eggshell rule is not needed."
Counter-arguments
Graders reward the sentence that begins "Defendant will argue…" followed by "However…". When the facts cut both ways, argue both sides, then pick the more persuasive.
The most common failure: a correct rule followed by a conclusion, with no facts in between. Every element needs a fact and the word "because."
Part 5 · Legal Research
Research moves from secondary sources (to understand the topic) to primary sources (to find the binding law), then to a citator (to confirm that the authority is still good law).
- Start with secondary sources: a treatise, a practice guide (in California, Witkin and the Rutter Group guides), or an encyclopedia (California Jurisprudence).
- Find the primary law: the statute in an annotated code (West's Annotated California Codes, U.S.C.A.), then the cases interpreting it.
- Update it: check every authority with KeyCite (Westlaw) or Shepard's (Lexis) for negative treatment.
- Record your path so you can repeat it.
Citation
| Source | Bluebook format |
|---|
| U.S. Supreme Court case | Padilla v. Kentucky, 559 U.S. 356 (2010) |
| California Supreme Court case | Rowland v. Christian, 443 P.2d 561 (Cal. 1968) |
| Federal statute | 8 U.S.C. § 1182(a)(9)(B) (2018) |
| California statute | Cal. Civ. Code § 1714 (West 2026) |
| Federal regulation | 8 C.F.R. § 212.7 (2026) |
California. California courts also accept the California Style Manual, which uses a different format, e.g., Rowland v. Christian (1968) 69 Cal.2d 108. Follow the format your court or professor requires.
NWCU includes a LexisNexis subscription. Learn Shepard's early: citing overruled law is one of the costliest mistakes in practice.
Part 6 · Law School Exams and Study Method
- Exam format at NWCU: midterms are open-book hypotheticals answered in IRAC (one third of the grade); finals are proctored, one hour per subject, taken in one sitting (two thirds). Grading is curved around a C; a B is a strong result.
- Outlines: build your own outline of each course as you go, organized by issue, not by case.
- Issue spotting: read the call first, read the facts twice, list every issue before writing.
- Time: about 15 minutes to read and outline, 40 minutes to write, 5 to check.
- Practice: write at least one timed answer per week from the second month of the term.
A strong exam answer spots every issue, states each rule accurately, applies it to the specific facts, argues both sides where the facts allow, and reaches a conclusion for each issue, under the headings the call of the question suggests.