What to Expect
Torts cold calls often begin deceptively simply: 'What did the defendant do wrong?' But the professor is testing whether you can translate a gut reaction into a structured legal analysis. In Torts, every answer should flow through the elements of the cause of action. For negligence: duty, breach, causation (actual and proximate), and damages. Skipping any element is the fastest way to get tripped up.
Professors in Torts are particularly interested in policy arguments. After you identify the rule, expect the follow-up: 'But why do we have this rule? What purpose does it serve?' Be prepared to discuss deterrence, loss spreading, corrective justice, and administrative efficiency. Torts is as much a course about policy as about doctrine, and cold calls reflect that.
Causation questions are the most challenging because they require you to distinguish between cause-in-fact (but-for causation) and proximate cause (legal cause, or scope of liability). Professors love hypotheticals involving intervening causes, multiple sufficient causes, and unforeseeable plaintiffs. The classic Palsgraf problem—is the defendant liable to an unforeseeable plaintiff?—generates some of the most intense cold call exchanges in all of law school.
Common Question Types
Duty Analysis
“Did the defendant in this case owe a duty of care to the plaintiff? On what basis?”
Start with the general rule: everyone owes a duty of reasonable care to foreseeable plaintiffs. Then address whether any special duty rules apply: landowner duties (trespasser/licensee/invitee or the modern unitary standard), duties of professionals (higher standard of care), duties based on special relationships (common carrier-passenger, innkeeper-guest), or the no-duty-to-rescue rule and its exceptions. Identify which category applies and why.
Breach and the Reasonable Person
“How do we determine whether the defendant's conduct was unreasonable?”
Apply the reasonable person standard—an objective test asking what a reasonably prudent person would have done under the same circumstances. Reference the Hand Formula (B < P × L): if the burden of precaution is less than the probability of harm multiplied by the magnitude of the loss, failure to take the precaution is negligent. Also mention custom evidence, statutory standards (negligence per se), and the role of professional standards for specialized defendants.
Actual Causation Problem
“Two hunters negligently fire simultaneously. Only one bullet hits the plaintiff but we cannot determine whose. Is there causation?”
This is the Summers v. Tice problem. Traditional but-for causation fails because neither defendant's conduct alone is a but-for cause (since the other bullet might have been the one). The Court applied alternative liability, shifting the burden of proof to each defendant to show their conduct was not the actual cause. Justify this on fairness grounds: between innocent plaintiff and negligent defendants, the defendants should bear the burden of uncertainty.
Proximate Cause / Foreseeability
“A negligently caused fire spreads across three properties. Is the defendant liable for damage to the third property?”
Discuss the competing tests for proximate cause. Under the direct causation test (Polemis), the defendant is liable for all direct consequences regardless of foreseeability. Under the foreseeability test (Wagon Mound), liability extends only to harms of a type that were reasonably foreseeable. Most modern jurisdictions follow the foreseeability approach. Apply the test to the facts: was fire damage to nearby properties foreseeable? Generally yes, which is why the answer likely favors liability.
Comparative vs. Contributory Negligence
“The plaintiff was 30% at fault. How does this affect recovery?”
It depends on the jurisdiction. Under pure contributory negligence (minority rule), any fault by the plaintiff bars recovery entirely. Under pure comparative fault, the plaintiff recovers but damages are reduced by their percentage of fault—here, recovery is reduced by 30%. Under modified comparative fault (the most common system), the plaintiff recovers if their fault does not exceed 50% (or 51% in some states). Identify which system applies and calculate accordingly.
Strict Liability Application
“A farmer keeps a pet tiger that escapes and injures a neighbor. Is the farmer strictly liable?”
Yes. Under the Restatement, keepers of wild animals are strictly liable for injuries caused by those animals, regardless of the precautions taken. The rationale is that keeping a wild animal is an abnormally dangerous activity, and the risk of harm is inherent even with the greatest care. Distinguish from domestic animals, where strict liability generally applies only if the owner knew of the animal's dangerous propensities (the 'one bite rule').
Intentional Tort Elements
“The defendant swings a bat at person A but hits person B instead. What claim does person B have?”
Apply the doctrine of transferred intent. The defendant intended to commit a battery against person A, so that intent transfers to person B for purposes of establishing the intent element. Person B has a claim for battery. The transferred intent doctrine applies across the original trespassory torts: battery, assault, false imprisonment, trespass to land, and trespass to chattels.
Policy Deep-Dive
“Why do we impose liability on employers for their employees' torts under respondeat superior?”
Three main justifications: (1) loss spreading—employers can distribute costs through pricing and insurance better than individual employees; (2) deterrence—employers are better positioned to supervise and prevent employee misconduct; and (3) enterprise liability—the employer created the risk by operating the business and should internalize the costs it generates. Note the scope limitation: the employee must be acting within the scope of employment.
Preparation Strategy
In Torts, your most valuable preparation technique is to practice element-checking with every case you read. Before class, take each assigned case and walk through the elements of the relevant cause of action, identifying which element is actually in dispute. Most cases turn on one or two contested elements—understanding which ones saves you from wasting time on issues that are not in play.
For negligence cases specifically, draw out the causal chain from the defendant's conduct to the plaintiff's injury. Identify every link in the chain and ask: could a professor insert an intervening cause here? Could a professor argue this link was unforeseeable? This exercise prepares you for the hypothetical modifications that dominate Torts cold calls.
Policy preparation is equally important. For each major doctrine, know at least two policy justifications and one criticism. For strict liability: the justifications are deterrence of abnormally dangerous activities and loss spreading, while the criticism is that it may overdeter socially useful conduct. Having these policy arguments ready allows you to engage with the deeper questions professors inevitably ask after the doctrinal analysis is complete.
Do's & Don'ts
Do's
- Always work through the elements in order—duty, breach, causation, damages
- Distinguish between actual cause and proximate cause explicitly
- Use the Hand Formula when discussing breach—it shows analytical sophistication
- Prepare policy justifications for every major rule you discuss
- Know both the Restatement (Second) and Restatement (Third) approaches when they differ
- Identify the plaintiff and defendant clearly before analyzing the claim
Don'ts
- Don't jump to damages without establishing liability
- Don't say 'the defendant was negligent' without identifying which element you mean
- Don't confuse assault (apprehension of imminent contact) with battery (actual harmful contact)
- Don't forget to consider defenses after establishing the prima facie case
- Don't conflate proximate cause with actual cause—they are separate inquiries
Panic Protocol
When you get caught off guard, follow these steps to recover gracefully.
Reset with elements: 'Let me walk through the negligence elements systematically, starting with duty.'
When the causation question is complex, separate the inquiries: 'First, on actual causation, the but-for test asks...'
If a hypothetical stumps you, identify the policy tension: 'The difficulty here is balancing the need for deterrence against the risk of overdeterrence.'
Fall back on the Restatement: 'Under the Restatement approach, the relevant factors include...'
Ask for clarification on the hypothetical: 'Are we assuming the intervening act was foreseeable or unforeseeable? That changes the proximate cause analysis.'
Sample Exchange
A realistic professor-student dialogue to help you see how cold calls unfold in Torts.
Professor
Tell me about Palsgraf v. Long Island Railroad. Who is Mrs. Palsgraf and what happened to her?
Student
Mrs. Palsgraf was standing on a train platform when railroad employees helped a man board a moving train. The man dropped a package, which unbeknownst to anyone contained fireworks. The package exploded, and the shock knocked over scales at the other end of the platform, which fell on Mrs. Palsgraf and injured her. She sued the railroad for negligence.
Professor
Was the railroad negligent?
Student
That depends on how we define the duty question. Justice Cardozo, writing for the majority, held that negligence is relational—the railroad's employees may have been negligent toward the man with the package, but Mrs. Palsgraf was an unforeseeable plaintiff. There was no duty of care owed to her because the risk of harm to someone in her position was not reasonably foreseeable from the act of helping someone board a train.
Professor
Justice Andrews dissented. What was his argument?
Student
Andrews argued that duty is owed to the world at large. Once the defendant's conduct is negligent toward anyone, the defendant is liable to every person proximately harmed by that conduct. Under Andrews' view, the proper question is not duty but proximate cause—whether the harm to Mrs. Palsgraf was too remote a consequence of the railroad's negligent act.
Professor
Which approach is better? Cardozo's or Andrews'?
Student
Both have merit. Cardozo's approach provides clearer limits on liability by using foreseeability as a gatekeeping mechanism at the duty stage—it prevents cases from going to the jury when the plaintiff is too remote. Andrews' approach is arguably more honest about what courts actually do—they allow the case to proceed and let the jury decide on proximate cause. Most jurisdictions follow Cardozo, but the debate continues in cases involving unusual chains of causation.
Professor
What if the package had been visibly labeled 'DANGER — EXPLOSIVES'? Would that change the analysis under Cardozo's framework?
Student
Yes, potentially. If the railroad employees could see that the package contained explosives, then the risk of an explosion harming bystanders on the platform—including Mrs. Palsgraf—would have been foreseeable. That would establish a duty of care to nearby individuals. The negligent act would no longer be merely 'helping someone board a train' but 'carelessly handling known explosives in a crowded area.' Under those facts, even Cardozo's approach likely extends duty to Mrs. Palsgraf.