How to Analyze a Torts Hypo

Read the call of the question first, then the facts. The call controls everything. "Discuss Pam's claims against Dan" is a different exam from "Discuss the rights and liabilities of all parties," which is different again from "You are a clerk to the trial judge; evaluate the motion for summary judgment." If the call limits you to one plaintiff, writing three pages about a claim by someone else earns zero.

Then build a two-column list: every potential plaintiff on the left, every potential defendant on the right. Include non-obvious defendants — employers under respondeat superior, landowners, product manufacturers and retailers up the distribution chain, parents, and anyone who owed a duty to control a third person. Each pairing is a separate analytical unit and usually deserves its own heading.

Finally, build a timeline. Torts fact patterns are almost always chronological, and causation, superseding cause, and comparative fault turn on sequence. Mark the moment of the injury, then work backward through every act and omission that preceded it.

Run a fixed checklist rather than trusting your instincts. The instinct approach finds the obvious negligence claim and misses the conversion or the intentional infliction claim buried in paragraph four. Your checklist should track your syllabus, but a standard one looks like this:

Take the elements in order and give each one a labeled paragraph. Duty, breach, actual cause, proximate cause, damages. Do not merge breach and causation; graders award points on a rubric keyed to elements, and a merged discussion loses credit for the element you glossed over.

State the general rule that a person owes a duty of reasonable care to foreseeable plaintiffs, and note when a special rule displaces it: no general duty to rescue, limited duties of landowners, heightened duties of common carriers and professionals, negligence per se from a statute, and affirmative duties arising from a special relationship or from having created the risk. For breach, use the reasonable person standard from Vaughan v. Menlove and, where the facts give you numbers or a cheap untaken precaution, the burden-versus-risk formulation from Judge Hand's opinion in United States v. Carroll Towing Co. Custom is evidence of breach but not conclusive.

For actual cause, run but-for. If two independent forces each would have sufficed, use the substantial factor test. If two defendants acted negligently and you cannot tell which one caused the harm, raise Summers v. Tice and burden-shifting. Then handle proximate cause separately: the harm must be within the scope of the risk that made the conduct negligent, and intervening criminal acts or grossly negligent medical treatment may or may not be superseding depending on foreseeability.

Duty and proximate cause. Professors write hypos around the contested boundary of these two elements because that is where the doctrine is genuinely unsettled. If a plaintiff is far removed from the defendant's conduct, you are being asked to argue Palsgraf v. Long Island Railroad Co. — Cardozo's relational duty owed only to foreseeable plaintiffs against Andrews's universal duty with proximate cause doing the limiting work. Argue both.

The other reliable hiding places are the eggshell-plaintiff rule versus unforeseeable type of harm (a defendant takes the plaintiff as found, but a wholly different kind of injury may fall outside the risk), pure economic loss with no physical impact, negligent infliction of emotional distress and its zone-of-danger and bystander limits, and duties to control third parties under a Tarasoff-style special relationship.

The tell is a fact that has no other purpose. If the hypo tells you the plaintiff was standing across the street, or that the defendant knew the third party had threatened someone, or that the injury was a heart attack rather than a broken leg, that fact exists to trigger a limiting doctrine.

Every fact in the hypo has a job. Before writing, go line by line and mark which element each fact bears on. Facts about the defendant's knowledge go to intent or breach. Facts about distance and timing go to duty and proximate cause. Facts about the plaintiff's own conduct go to comparative fault or assumption of risk. Unmarked facts are usually issues you missed.

Then argue both sides on every contested element, and do it with facts rather than adjectives. "The defendant was clearly unreasonable" is worth nothing. "The defendant had thirty seconds after hearing the alarm and a working shut-off valve within arm's reach; the burden of shutting the valve was trivial compared to the risk of a chemical release across a residential street" is worth points. Then give the other side: "the defendant reasonably believed the alarm was the third false alarm that week."

Reach a conclusion on each element. An answer that lays out both sides and then refuses to decide reads as indecision. Say which argument is stronger and why, briefly.

This is where torts exams genuinely vary, and the variation is driven by your professor's casebook and stated defaults, not by any national rule. Find out in advance whether your course defaults to contributory negligence or comparative fault, and if comparative, whether pure or modified. Find out whether your professor uses the traditional invitee/licensee/trespasser landowner categories or the unitary reasonable-care approach of Rowland v. Christian. Find out whether the course follows the Restatement (Second) of Torts or the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, which reframes duty and replaces proximate cause with a scope-of-liability inquiry.

If the professor has not said, do not pick one silently. Write one sentence naming the split, then analyze under the majority rule and add a short paragraph on how the outcome changes under the minority rule. That is usually a rubric line item. The same technique works for the abnormally-dangerous-activity factors, the consumer-expectations versus risk-utility test for design defect, and joint versus several liability.

Whether case names are required varies by professor; most treat them as a bonus and none of them expect a citation. Use the name when it is shorthand for a rule your grader will recognize — Palsgraf, Garratt v. Dailey for substantial certainty, Byrne v. Boadle for res ipsa, Escola and Greenman for strict products liability. Never fabricate a name or a holding; a wrong case name costs more than no case name. If you cannot remember it, state the rule cleanly and move on.

For a written memo or a paper rather than an exam, cite in Bluebook form: Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928); Restatement (Second) of Torts § 402A (Am. L. Inst. 1965). Note that older Bluebook editions omit the institutional author, so check which edition your journal or professor uses.

On time: allocate roughly in proportion to the fact density. Count the disputed issues, divide the minutes, and reserve the last five minutes of each question for defenses and damages, which students routinely run out of time for and which are cheap points. Write short headings for each plaintiff-defendant pair and each element. A grader reading eighty exams finds points faster in a signposted answer, and points they cannot find do not get awarded.