How to Outline Torts

Torts is the most element-driven course in the 1L year, and your outline should look like it. The top level of the document is the cause of action: battery, assault, false imprisonment, IIED, trespass to land, trespass to chattels, conversion, negligence, strict liability for abnormally dangerous activities, products liability, defamation, the privacy torts, nuisance. Under each, list the elements as numbered items in the order your professor stated them. Under each element, put the rule, the recognized splits, and the cases that turn on that element and nothing else.

Then give every cause of action a closing block: affirmative defenses and available damages. This is where most outlines fail. Students write four pages on breach and forget that consent kills the battery claim, or that contributory negligence is still the rule in Alabama, Maryland, North Carolina, Virginia, and D.C. A cause of action is not complete in your outline until you can also say how the defendant defeats it and what the plaintiff collects.

Coverage varies a lot by school. Some Torts courses are one semester and stop at proximate cause; others run a full year and add products liability, defamation, and compensation systems. Casebook choice drives it — a Franklin, Rabin & Green course spends real time on workers' compensation and no-fault auto regimes, while a Goldberg & Zipursky course frames everything as civil wrongs and relational duty. Outline what was taught, not what a commercial supplement covers.

Give each intentional tort a rigid element list and a defined intent standard. For battery, note the split your professor emphasized: dual intent (defendant must intend the contact and intend that it be harmful or offensive) versus single intent (intent to contact suffices). Put Garratt v. Dailey under the intent element for the substantial-certainty rule — pulling the chair, knowledge with substantial certainty that contact will follow. Do not put Garratt under 'contact.' The whole point of the outline is that the case sits where you will need it.

Build one shared section for transferred intent and note which torts it covers — the trespassory writ torts of battery, assault, false imprisonment, trespass to land, and trespass to chattels — and that it transfers both between victims and between torts. For IIED, quote the Restatement (Second) of Torts § 46 language on extreme and outrageous conduct, then list the aggravating factors courts use (abuse of position or power, known susceptibility, repetition) and the separate bystander rules for presence and family relationship.

The defenses block for intentional torts should be its own decision tree: consent (express, implied, scope, capacity, consent obtained by fraud), self-defense and defense of others (reasonable belief, proportionality, retreat rules), defense of property with Katko v. Briney for the no-deadly-force and spring-gun rule, recapture of chattels, shopkeeper's privilege, discipline, and necessity. Under necessity, keep public and private separate: public necessity is a complete privilege, while private necessity is incomplete — Ploof v. Putnam for the right to moor, Vincent v. Lake Erie Transportation Co. for the duty to pay for the resulting damage.

Negligence is one cause of action with four elements, and everything you learned all semester sits under one of them. Force yourself to file every doctrine. Duty holds the general duty of reasonable care plus the no-duty rules: the nonfeasance baseline and its exceptions (special relationship, voluntary undertaking, creation of the risk), landowner duties under the traditional invitee/licensee/trespasser categories versus the unitary reasonable-care approach of Rowland v. Christian, duties to third parties as in Tarasoff v. Regents of the University of California, and negligent infliction of emotional distress (impact, zone of danger, and the bystander factors from Dillon v. Legg as tightened into elements by Thing v. La Chusa).

Breach holds the objective reasonable person standard (Vaughan v. Menlove), adjustments for physical disability, children, and professionals, the risk-utility calculus of United States v. Carroll Towing, custom as evidence but not dispositive (Trimarco v. Klein; The T.J. Hooper), medical malpractice and informed consent, negligence per se with Martin v. Herzog and the excuse doctrine of Tedla v. Ellman, and res ipsa loquitur with Byrne v. Boadle and the multiple-defendant extension in Ybarra v. Spangard.

Causation splits into two subheadings and should never be merged. Actual cause: but-for, the substantial factor test for multiple sufficient causes, alternative liability from Summers v. Tice, and market share from Sindell v. Abbott Laboratories. Proximate cause: the foreseeability rule of The Wagon Mound (No. 1) against the directness approach of In re Polemis, superseding versus intervening causes, the eggshell-skull rule, the rescuer doctrine, and Palsgraf — which you should flag as a duty case in Cardozo's majority and a proximate cause case in Andrews's dissent, because professors split on how they teach it.

Damages holds the requirement of actual harm, economic versus noneconomic categories, punitive damages standards, collateral source, and avoidable consequences. Then the defenses block: contributory negligence and its last-clear-chance escape, pure comparative fault versus modified comparative fault at the 50% or 51% bar, express assumption of risk and the primary/secondary implied distinction, immunities, and limitations and repose periods.

Strict liability is short and should stay short: animals (wild versus domestic with known dangerous propensities, plus trespassing livestock) and abnormally dangerous activities. For the latter, note Rylands v. Fletcher and then give the operative modern test — the six-factor list in Restatement (Second) of Torts § 520 versus the narrower Restatement (Third) formulation asking whether the activity creates a foreseeable and highly significant risk even when reasonable care is exercised and is not one of common usage. Add the scope limitation: strict liability reaches only the kind of harm that made the activity abnormally dangerous.

Products liability needs a two-axis grid: theories on one axis, defect types on the other. Theories are negligence (privity abolished in MacPherson v. Buick Motor Co.), warranty, and strict liability (Justice Traynor's concurrence in Escola v. Coca Cola Bottling Co., adopted in Greenman v. Yuba Power Products, then Restatement (Second) of Torts § 402A). Defect types are manufacturing, design, and warning. Under design defect, the split matters most: consumer expectations, risk-utility, and the reasonable alternative design requirement of Restatement (Third) of Torts: Products Liability § 2(b). Close with defenses — misuse, substantial alteration, comparative fault, learned intermediary, state of the art, and federal preemption.

Give separate short sections to defamation, privacy, nuisance, apportionment, and vicarious liability. Defamation needs the common law elements (defamatory statement of and concerning the plaintiff, publication, damages, plus libel/slander and per se categories) stacked under the constitutional overlay: actual malice for public officials and public figures under New York Times Co. v. Sullivan, and at least negligence plus proof of actual damages for private figures on matters of public concern under Gertz v. Robert Welch, Inc. Chart it by plaintiff type and subject matter — that is how the exam question will be built.

The privacy torts are four distinct claims with different elements: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness. Nuisance splits into private (substantial and unreasonable interference with use and enjoyment) and public (unreasonable interference with a right common to the public, with a special-injury requirement for a private plaintiff). Vicarious liability covers respondeat superior and scope of employment, frolic versus detour, the independent contractor rule and its nondelegable-duty exceptions, and negligent hiring or supervision as a direct claim.

Finish with a multi-defendant section: joint and several liability versus several-only apportionment, contribution, indemnity, and the effect of settlements. Fact patterns almost always have three or more actors, and this section is what lets you finish the answer instead of stopping at liability.

Build in tiers. The master outline can be thirty pages. Compress it into a ten-page working outline that strips case facts down to a trigger phrase and a rule. Then compress again into a one- to two-page attack sheet that is nothing but a checklist: every plaintiff against every defendant, every plausible cause of action, every element, every defense. On exam day the attack sheet is what you actually read; the long outline is what got the material into your head.

Write case entries as single lines with a trigger and a rule, not as briefs. 'Byrne v. Boadle — barrel falls from warehouse window; res ipsa where accident ordinarily doesn't happen absent negligence and instrumentality was in defendant's control.' Pasting your briefs into the outline is the single most common way students end up with a document they cannot search under time pressure.

Make a one-page splits table. Columns: doctrine, majority rule, minority rule, Restatement position, what your professor said. Torts exams reward you for saying 'in a contributory negligence jurisdiction the claim fails entirely, but under modified comparative fault at the 51% bar the plaintiff recovers 40%.' You cannot produce that sentence on the fly unless you have already written it down.

Exam citation is by case name only — no reporters, no Bluebook. Bluebook form belongs in your legal writing memo, where a Restatement cite looks like Restatement (Second) of Torts § 402A (Am. L. Inst. 1965). Keep the two habits separate so you do not waste exam minutes on citation form nobody is grading.

The recurring failures are structural, not substantive. Organizing by casebook chapter buries duty rules three chapters away from breach rules. Omitting the defenses block means you spot the tort and lose the points for consent or comparative fault. Filing cases by name rather than by element means you remember that Tedla v. Ellman exists but cannot recall that it belongs under negligence per se excuses. And leaving out damages means your answers stop halfway through the analysis your professor is grading.

One more: not recording which questions are for the judge and which for the jury. Duty is a question of law; breach and causation are ordinarily for the jury. Professors who care about that distinction test it, and it takes one line in your outline to preserve.