Torts Exam Checklist

Organize by claim, not by case. A checklist built around case names fails on exams because facts rarely track a case; facts track elements. Every entry should be a claim with its elements listed underneath, then the defenses that attach to that claim specifically.

Run it in this order every time: (1) intentional torts to person and property; (2) negligence; (3) strict liability (animals, abnormally dangerous activities); (4) products liability; (5) nuisance; (6) defamation, privacy, misrepresentation; (7) vicarious and joint liability; (8) damages. The order matters because it moves from the most fact-specific to the most general, and because intentional torts are easy to miss once you fall into negligence mode.

Keep two versions. A one-page trigger list you can reconstruct from memory in the first five minutes, and a longer version with rule statements you memorize before the exam. On a closed-book exam you write the trigger list on scratch paper; on an open-book exam you keep the long version tabbed but you still write the trigger list, because scrolling through an outline mid-exam is how students lose fifteen minutes.

Start with intent, because it is shared. Intent means purpose to cause the result or knowledge that the result is substantially certain to follow — Garratt v. Dailey. Add transferred intent across the five trespassory torts (battery, assault, false imprisonment, trespass to land, trespass to chattels) and note that mistake does not negate intent. Children and the mentally ill can form intent.

Then the elements, tort by tort. Battery: intentional harmful or offensive contact with the plaintiff's person, judged by a reasonable-person offensiveness standard; the defendant takes the plaintiff as found, so unforeseen severity is no defense (Vosburg v. Putney). Assault: intentional act causing reasonable apprehension of imminent contact; words alone usually insufficient, and future threats fail imminence. False imprisonment: intentional confinement within fixed boundaries, plaintiff aware or harmed; check the shopkeeper's privilege. IIED: extreme and outrageous conduct, intent or recklessness, severe emotional distress — and the separate bystander rules under Restatement (Second) of Torts § 46. Trespass to land: intentional entry, no harm required, nominal damages available. Trespass to chattels versus conversion: degree of interference and the remedy (damages versus forced sale).

Defenses run second: consent (express, implied, scope-exceeded, capacity, consent to crime), self-defense and defense of others (reasonable belief, proportional force, deadly force only against threat of death or serious bodily harm), defense of property (never deadly force or spring guns — Katko v. Briney), recapture of chattels, public necessity (complete defense), and private necessity (incomplete — the actor may enter but pays for actual damage, Ploof v. Putnam and Vincent v. Lake Erie Transportation Co.).

Duty. Default rule: a duty of reasonable care to foreseeable plaintiffs. Flag the no-duty and limited-duty categories, because that is where professors hide points — nonfeasance and the no-duty-to-rescue rule with its exceptions (special relationship, voluntary undertaking, creation of the peril, statute), duties to control third parties (Tarasoff v. Regents of the University of California), landowner duties (invitee, licensee, trespasser, child trespassers and the attractive nuisance doctrine, and whether your jurisdiction has collapsed the categories after Rowland v. Christian), negligent infliction of emotional distress (zone of danger versus the bystander factors of Dillon v. Legg as narrowed by Thing v. La Chusa), pure economic loss, and wrongful death and survival actions.

Breach. State the standard — objective reasonable person under the circumstances (Vaughan v. Menlove), with adjustments for physical disability, children (child standard, except adult activities), and professionals (custom-based standard, with informed consent as its own inquiry). Then the proof methods: the Hand formula from United States v. Carroll Towing Co. (B < PL), custom as evidence but not conclusive, negligence per se (Martin v. Herzog; check class-of-person, class-of-harm, and excuse under Tedla v. Ellman), and res ipsa loquitur (Byrne v. Boadle) with its accident-ordinarily-does-not-occur and defendant-responsibility requirements.

Causation. Split it clearly. Factual cause: but-for, substantial factor for multiple sufficient causes, alternative liability where two negligent defendants and one indivisible harm (Summers v. Tice), market share (Sindell v. Abbott Laboratories), and loss-of-chance in medical cases. Scope of liability (proximate cause): the Cardozo foreseeable-plaintiff framing of Palsgraf v. Long Island Railroad versus the Andrews direct-consequences dissent, foreseeable type of harm (Wagon Mound No. 1), the eggshell-plaintiff rule on extent, and superseding causes — intervening criminal acts, medical malpractice, and rescuers.

Damages and defenses. Actual harm is an element; there is no nominal-damages negligence claim. Then run contributory negligence (still the rule in a handful of jurisdictions, with last clear chance), pure comparative fault (Li v. Yellow Cab Co.), modified comparative fault at the 50% or 51% bar, assumption of risk (express, and whether implied primary/secondary has been folded into comparative fault), avoidable consequences, and immunities.

Strict liability covers three things on most exams: trespassing livestock and wild or known-dangerous animals; abnormally dangerous activities (Rylands v. Fletcher, with the Restatement (Second) § 520 six factors or the Restatement (Third) § 20 test of foreseeable and highly significant risk that reasonable care cannot eliminate, plus uncommon usage); and, in some courses, respondeat superior treated here rather than separately. Always ask whether the harm flowed from the risk that made the activity abnormally dangerous — that is the limiting doctrine.

For products, identify the defect type first because the test differs. Manufacturing defect: departure from the design, effectively strict liability, and res ipsa-style circumstantial proof is allowed. Design defect: consumer expectations, risk-utility, or the Restatement (Third) of Torts: Products Liability § 2(b) requirement of a reasonable alternative design — say which your professor uses. Warning defect: adequacy, foreseeable users, the learned intermediary rule, and post-sale duties.

Then the surrounding rules: who counts as a commercial seller in the distribution chain (Greenman v. Yuba Power Products; Escola v. Coca Cola Bottling Co. for the policy), plaintiffs including bystanders, the economic loss rule pushing claims into contract, preemption, and defenses — misuse, alteration, comparative fault, and the state-of-the-art question.

The back half of the course. Defamation is a full checklist of its own: defamatory statement, of and concerning the plaintiff, publication, falsity, fault (actual malice for public officials and public figures under New York Times Co. v. Sullivan; at least negligence for private plaintiffs under Gertz v. Robert Welch, Inc.), damages (libel versus slander, slander per se), and privileges. The four privacy torts — intrusion, public disclosure of private facts, false light, appropriation — each need separate elements.

Also commonly dropped: private nuisance (substantial and unreasonable interference with use and enjoyment) versus public nuisance and the special-injury requirement; intentional and negligent misrepresentation, with the narrower duty for negligent misstatements causing pure economic loss; tortious interference; and malicious prosecution.

Structural items get dropped too. Before you finish, sweep for vicarious liability (respondeat superior, scope of employment, frolic and detour, independent contractors and the nondelegable-duty exceptions), joint and several versus several liability, contribution and indemnity, settlement credits, and the damages taxonomy: past and future medical, lost earning capacity, pain and suffering, collateral source rule, mitigation, and punitive damages with their due process limits.

More than in most first-year courses, and you should ask directly rather than guess. The biggest variables: whether your professor teaches the Restatement (Second) or the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, which changes how you frame duty (Third Restatement § 7 makes duty presumptive with policy-based no-duty exceptions) and proximate cause (Third Restatement § 29 reframes it as harms within the scope of the risk). Answers written in Second Restatement vocabulary in a Third Restatement course read as unprepared.

Other splits to pin down: contributory versus comparative negligence as the default; whether implied assumption of risk survives independently; whether landowner categories persist; whether design defect uses consumer expectations, risk-utility, or requires a reasonable alternative design; and whether the course covers strict products liability under § 402A at all or moves straight to the Products Restatement. If your professor emphasized a minority rule in class, that rule is on the exam.

Finally, match the checklist to the exam format. If the exam is one four-hour issue-spotter, the checklist is a spotting tool and you allocate time by point value. If there is a policy essay, add a short block of recurring policy moves — deterrence, loss spreading, administrability, corrective justice, activity-level effects — because those arguments are what separate a B+ analysis from an A on the discretionary questions.

Read the call of the question first, then the facts, then the call again. The call tells you whose claims to analyze; a checklist run for the wrong party earns nothing. Mark every actor in the fact pattern and draw a grid of plaintiff-defendant pairs before you write a word of analysis.

Spend roughly ten to fifteen percent of the allotted time outlining, then write in IRAC or CREAC with the rule stated before the analysis. Give the most words to the elements that are genuinely contested. If the facts make breach obvious but causation messy, one sentence on breach and three paragraphs on causation is the right allocation — and saying explicitly that an element is clearly satisfied and why still earns the point.

Argue both sides on close elements and reach a conclusion anyway. Graders reward the reasoning, not the outcome, but an answer that never resolves anything reads as evasive. And do not cite cases by full citation on a closed-book exam; a short name like Palsgraf or Carroll Towing, used to identify a rule, is all any professor expects.