Torts Final Exam Attack Checklist
Final exam attack checklist covering intentional torts, negligence, strict liability, products liability, and defenses.
Pre-Exam Preparation
- Create a master list of all intentional torts with their elements: battery, assault, false imprisonment, IIED, trespass to land, trespass to chattels, conversion
- Memorize the negligence framework: duty (general and special duties), breach (reasonable person standard, Hand formula, custom, negligence per se), causation (actual and proximate), and damages
- Review strict liability triggers: abnormally dangerous activities (Restatement factors), wild animals, and products liability (manufacturing, design, and warning defects)
- Outline all affirmative defenses: contributory negligence, comparative fault (pure vs. modified), assumption of risk (express and implied), and consent
- Map out the products liability framework under Restatement 3d: manufacturing defect, design defect (risk-utility and consumer expectations tests), and failure to warn
- Review vicarious liability: respondeat superior (scope of employment), independent contractor exceptions, and joint enterprise
Issue-Spotting Checklist
- Check for all intentional torts: battery, assault, false imprisonment, IIED, trespass to land, trespass to chattels, conversion — the facts may support multiple claims
- Identify potential strict liability claims: abnormally dangerous activities, wild animals, products liability
- For negligence: determine whether a special duty applies (e.g., common carriers, innkeepers, landowners, professionals, rescue doctrine, negligent entrustment)
- Analyze breach using multiple tests: reasonable person standard, Hand formula (B < P x L), custom evidence, and negligence per se (statute violation)
- Check for actual causation: but-for test for single causes, substantial factor test for concurrent causes
- Analyze proximate cause: foreseeability of the type of harm, intervening and superseding causes, and the eggshell plaintiff rule
- Look for potential defenses: comparative fault, contributory negligence, assumption of risk (express and implied primary), last clear chance
- Identify any vicarious liability issues: employer-employee relationships, independent contractors, partnerships, parent-child
- Check for damages limitations: economic loss rule, collateral source rule, pure emotional distress claims (zone of danger, bystander recovery under Dillon/Thing factors)
- Look for joint and several liability issues when multiple defendants are involved — contribution and indemnity rights
Common Essay Structure (IRAC)
- Issue: Identify each tort claim separately (e.g., 'Whether D committed battery against P when D threw the ball that struck P')
- Rule: State the elements of the specific tort with the black-letter rule and key case authority
- Application: Analyze each element in order, using specific facts from the hypothetical — do not skip elements even if they seem obvious
- Defenses: After establishing the prima facie case, always analyze available defenses (consent, self-defense, comparative fault, assumption of risk)
- Damages: Discuss the type and extent of recoverable damages, including any limitations (pure economic loss, emotional distress requirements)
- Conclusion: State liability and likely damages, noting which issues are close calls
Key Rules to Memorize
- Battery: intentional harmful or offensive contact with another person — transferred intent applies
- Assault: intentional act creating a reasonable apprehension of imminent harmful or offensive contact
- False imprisonment: intentional confinement within boundaries set by the defendant, with awareness by the plaintiff or actual harm
- IIED: extreme and outrageous conduct intentionally or recklessly causing severe emotional distress
- Negligence duty: general duty of reasonable care owed to all foreseeable plaintiffs (Cardozo in Palsgraf, not Andrews)
- Breach (Hand formula): defendant is negligent when the burden of precaution (B) is less than the probability of harm (P) times the magnitude of loss (L)
- Actual causation (but-for test): but for the defendant's negligence, the plaintiff's injury would not have occurred; use substantial factor for concurrent causes
- Proximate cause: defendant is liable for foreseeable types of harm — an unforeseeable intervening cause that is not a normal response may be superseding
- Strict liability (abnormally dangerous activities): activity creates a foreseeable, highly significant risk of harm that cannot be eliminated with reasonable care (Restatement factors)
- Products liability — manufacturing defect: product departs from intended design; design defect: reasonable alternative design would have reduced risk (risk-utility test); failure to warn: inadequate instructions about non-obvious risks
- Comparative fault (pure): plaintiff's damages are reduced by their percentage of fault; (modified): plaintiff barred if 50% or 51% at fault, depending on jurisdiction
- Joint and several liability: each defendant is liable for the full amount of plaintiff's damages when defendants act in concert or cause indivisible harm
Last-Minute Tips
- Always analyze negligence even if an intentional tort seems to apply — professors often give facts that support both, and you earn points for each
- For proximate cause, remember the eggshell plaintiff rule: you take the plaintiff as you find them (thin skull rule) — the type of injury must be foreseeable, but the extent need not be
- When you see a products liability question, analyze all three defect theories (manufacturing, design, warning) unless the facts clearly exclude one
- Don't forget transferred intent: intent to commit one intentional tort against one person transfers to a different tort or different victim within the original five trespassory torts
- Remember that emotional distress recovery in negligence requires physical manifestation or zone-of-danger presence (or bystander recovery under Thing v. La Chusa factors)
Time Management
- Torts essays often have multiple plaintiffs and multiple defendants — map out each claim before writing to avoid missing any party combination
- Analyze the intentional torts first (they are usually faster) before moving to negligence analysis, which requires more detailed element-by-element discussion
- If the fact pattern involves a product, devote significant time to products liability — it typically carries heavy weight on torts finals
- For multi-issue essays, spend roughly equal time on each major claim rather than writing exhaustively about the first issue and running out of time