Torts Attack Outline: How to Build One

Your master outline explains the law to you. Your attack outline tells you what to do next. The master outline might have two pages on proximate cause with the Wagon Mound and Polemis approaches, hypotheticals, and your professor's asides. The attack outline has one line: "Prox cause: foreseeable type of harm? If unforeseeable manner/extent — still liable (eggshell, Vosburg). Intervening act: superseding only if unforeseeable AND independent. Criminal acts of third parties usually superseding unless D's duty was to guard against them."

The functional test is speed. If you cannot get from "D punched P" to "battery: intent (purpose or substantial certainty, Garratt), harmful or offensive contact, causation" in under three seconds while looking at the page, the entry is too long. Cut prose. Use arrows, slashes, and fragments. Nobody grades your outline.

Write the attack outline last, after the master outline is done, and write it yourself. The compression is the studying. A borrowed attack outline is a stranger's shorthand and will read as gibberish at minute forty of a three-hour exam.

Order the outline by how a fact pattern presents, not alphabetically and not in the order your casebook covered material. Most Torts exams open with a physical injury or a piece of property damage and ask who pays. So run the branches in the order the facts will push you.

A standard spine that works for a first-year survey course:

Give every tort four things and nothing else: the element list, the operative test for the element that actually gets litigated, the split, and the trigger fact. Everything else lives in the master outline.

Battery, for example: (1) intent — purpose or substantial certainty that contact will result (Garratt v. Dailey); note the split on whether D must intend harm or only the contact (dual vs. single intent), which matters for children and the mentally ill; transferred intent applies across the five trespassory torts and across victims. (2) Harmful or offensive contact, judged by a reasonable-person standard, extends to things closely connected to the body. (3) Causation. Trigger fact: any unconsented touching, including practical jokes, medical procedures beyond consent, and smoke or particles.

IIED: extreme and outrageous conduct, intent or recklessness, severe emotional distress. Flag that mere insults are not enough and that the third-party/bystander branch has its own presence-and-relationship requirements. Trigger fact: a course of harassment, abuse of a known vulnerability, or abuse of a position of authority.

Keep the citation load light. On most exams you get credit for the rule, not the reporter. Carry case names only where the name is the shorthand your professor uses — Palsgraf, Carroll Towing, Summers v. Tice, Byrne v. Boadle, MacPherson, Escola, Greenman, Sullivan, Gertz.

Negligence will be sixty to eighty percent of your exam, so give it the most structure and the most sub-branching. Treat each element as its own mini-checklist with an escape hatch to the special doctrines.

Duty: default is a duty of reasonable care to foreseeable plaintiffs (Restatement (Third) § 7 makes duty the default and treats no-duty as the exception). Then the exceptions in a list — no duty to rescue absent a special relationship, voluntary undertaking, or D's own creation of the risk; landowner categories (invitee/licensee/trespasser) versus the unitary reasonable-care approach many states have adopted; duty to control third parties (Tarasoff-type); NIED via zone of danger versus the Dillon v. Legg bystander factors; no duty for pure economic loss to remote parties. Note Cardozo's foreseeable-plaintiff framing versus Andrews's duty-to-all in Palsgraf, and say which one your professor prefers.

Breach: the reasonable person, objective, with adjustments for physical disability, children (except in adult activities), and professionals (custom is the standard in medical malpractice; informed consent is separate). Add the Hand formula from Carroll Towing (B < PL), custom as evidence but not dispositive, negligence per se (statute's class of persons and class of harms, Martin v. Herzog framing, excuses), and res ipsa (event ordinarily doesn't occur absent negligence, D's exclusive control or responsibility, not due to P).

Causation: but-for; substantial factor for multiple sufficient causes; burden-shifting for alternative liability (Summers v. Tice); market share (Sindell), noting it is a minority approach; loss of chance in medical cases where recognized. Proximate cause: scope-of-the-risk framing, foreseeable type of harm, eggshell plaintiff, rescuer doctrine (Wagner), intervening versus superseding causes.

Put them at the end of every liability branch as a standing block you run after each tort, because students lose the most easy points here. Comparative fault: identify pure versus modified (50% or 51% bar) and say which your jurisdiction uses; note that most states apply it to strict liability and products claims too, and that assumption of risk has been partly absorbed into it. Implied assumption of risk is often reframed as either no-duty (primary) or comparative fault (secondary) — carry that distinction as a single line.

Damages: compensatory (past and future medical, lost earning capacity, pain and suffering), the duty to mitigate, punitive damages requiring malice or reckless indifference plus constitutional ratio limits, wrongful death and survival actions as separate statutory claims, and the collateral source rule.

Allocation: joint and several versus several-only liability, contribution among tortfeasors, indemnity for a purely vicariously liable defendant, and vicarious liability itself — respondeat superior with scope-of-employment and frolic-versus-detour, non-delegable duties, and the general rule of no liability for independent contractors with its exceptions.

The doctrine is national but the emphasis is not, and your outline should be built for your exam, not the bar. Three variables drive it. First, whether your professor teaches a single jurisdiction's law or teaches splits — if she teaches splits, every entry needs a majority/minority line and a sentence of policy for each side, because the points are in the argument, not the answer. Second, whether the exam is closed-book, open-book, or has a page limit; a closed-book exam demands ruthless compression, while an open-book exam lets you carry more rule text but still needs the same triage spine. Third, coverage: many courses never reach defamation, privacy, or economic torts, and some spend weeks on products liability or on Restatement (Third) framing rather than § 402A. Delete what you did not cover.

Reverse-engineer from old exams. If three of the last four exams featured a products defect and a comparative fault allocation, those branches get a full page each and dignitary torts get four lines. Also copy your professor's vocabulary exactly — if she says "scope of the risk" rather than "proximate cause," or insists on the Restatement (Third) § 2 design-defect language with reasonable alternative design, use hers.

Test it under exam conditions before the exam. Take a past fact pattern, set a timer, and issue-spot using only the attack outline. If you finish and then find, in the model answer, an issue your outline should have surfaced, the fix is a new trigger line — not a new paragraph of black letter.

Then do the reconstruction drill: on a blank page, from memory, rewrite the whole attack outline. Do it three or four times in the last two weeks. The gaps you leave are exactly the doctrines you will forget on exam day. This drill also means that if the exam is closed-book, you can spend the first five minutes writing the skeleton in the margin and then work down it, which is the single most reliable defense against panic-driven omission.

Finally, make sure the outline forces you to do the two things graders reward: apply facts to each contested element rather than reciting rules, and address the other side's best argument. A line at the bottom of each branch that says "argue both sides on the closest element" is worth more than another half-page of rules.