Torts Flashcards: What to Put on Them

A good card holds one unit you could be asked to reproduce under time pressure. In Torts that means four families of cards: element cards (the full list for a cause of action), standard cards (the definition of one contested element), trigger cards (what facts make a rule fire), and consequence cards (what follows once the element is met — liability, a complete defense, a damages cap, a burden shift).

An element card looks like this. Front: "Battery — prima facie elements." Back: "(1) D acts; (2) intending to cause a harmful or offensive contact with P or imminent apprehension of such contact; (3) a harmful or offensive contact with P's person results; (4) causation." That is the skeleton. It is not enough by itself, because the exam will fight about element (2), so you make a second card just for intent. Front: "Intent for intentional torts — what mental state suffices?" Back: "Purpose to bring about the result, OR knowledge that the result is substantially certain to follow. Garratt v. Dailey (child pulls chair; liability if he knew with substantial certainty plaintiff would hit the ground)."

Write the back in the sentence form you would actually type on the exam. You are not just storing information; you are rehearsing prose. A back that reads "substantial certainty test" teaches you nothing you can put on a page.

Negligence eats most of the course and most of the exam, so build it first and build it deepest. You need separate cards for each of duty, breach, actual cause, proximate cause, and damages, and then sub-cards under each: the general duty formulation and the no-duty-to-rescue baseline plus its exceptions (special relationship, voluntary undertaking, creation of the risk); Learned Hand's B < PL from United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947); custom as evidence but not conclusive; negligence per se and its excuses; res ipsa loquitur and its traditional elements, with Byrne v. Boadle as the flour-barrel anchor.

Causation deserves more cards than students give it. Make separate cards for but-for cause, the substantial factor test for multiple sufficient causes, alternative liability with a shifted burden (Summers v. Tice), and market-share liability (Sindell v. Abbott Laboratories). On the proximate cause side, card the Palsgraf majority (duty runs only to foreseeable plaintiffs in the zone of danger) against the Andrews dissent (duty to all, limited by direct-consequence and practical-politics factors), and card the foreseeable-type-of-harm rule from The Wagon Mound alongside the eggshell-plaintiff rule.

Then intentional torts and their defenses (consent, self-defense, defense of others, defense of property and the no-deadly-force-for-property limit from Katko v. Briney, public and private necessity — Vincent v. Lake Erie Transportation Co. for the incomplete-privilege payment rule). Then strict liability and products. Then the specialty torts your syllabus reaches: IIED, NIED, defamation, privacy, nuisance, vicarious liability.

This genuinely varies by professor, and the variable is what your exam rewards. If your exam is a closed-book issue spotter graded on rule application, case names are shorthand at best and a time sink at worst. If your professor uses names as rule labels in class — "a Tarasoff duty," "a Rowland factor analysis," "the MacPherson move" — you need those names because they are the vocabulary of the grading rubric. If there is a policy essay, you need case names because that essay is a comparison of judicial approaches.

Make a case card when one of three things is true: the case is the standard name for the rule (Summers v. Tice; Sindell; Greenman v. Yuba Power Products for strict products liability; New York Times Co. v. Sullivan for actual malice); the case contains a split you must deploy on both sides (Palsgraf majority vs. dissent; Dillon v. Legg's flexible bystander factors vs. Thing v. La Chusa's rigid three requirements); or the case marks an outer boundary (Katko for spring guns; Vincent for necessity with compensation).

Format the back as holding-stated-as-rule plus a five-word fact hook, not a brief. Front: "Rowland v. Christian." Back: "California abolishes the invitee/licensee/trespasser categories; land possessors owe a unitary reasonable-care duty, assessed by foreseeability, certainty of injury, closeness of connection, moral blame, policy of preventing harm, burden, and insurance. Hook: broken faucet handle, social guest." If you want the full Bluebook cite on the card, use the standard form — Rowland v. Christian, 69 Cal. 2d 108 (1968) — but only if your professor requires citation, which most first-year Torts exams do not.

Keep cards atomic. One question, one answer. The temptation in Torts is to make a monster card holding all of products liability; you will fail it every time, mark it "again," and learn nothing. Split it: manufacturing defect (departure from the intended design, even with all possible care), design defect (consumer expectations test in some jurisdictions, risk-utility with a reasonable alternative design under Restatement (Third) of Torts: Products Liability § 2(b) in others), and warning defect, each on its own card.

For multi-factor tests, use cloze deletion rather than a "list all seven" card. The Restatement (Second) of Torts § 520 abnormally dangerous activity factors and the Rowland factors both work better as six or seven cloze cards cut from one sentence than as a single recitation card. You will still get the whole list, but you will get it without the all-or-nothing failure.

Tag the front of every card that involves a split. Front: "Contributory vs. comparative negligence — what does a majority jurisdiction do today?" Back: "Most states have replaced the total bar of contributory negligence with comparative fault — pure (recovery reduced by plaintiff's share, as in Li v. Yellow Cab Co.) or modified (barred at 50% or 51%). Know which your professor treats as default." The tag forces you to answer the follow-up question your exam will ask.

Distinction cards are the highest-value cards in the deck, because Torts exams are built on near-miss fact patterns. Make a card for each pair you can imagine confusing under time pressure.

Also build standard-of-care variant cards: the child standard and its adult-activity exception, the professional standard, common carriers, the physically disabled plaintiff, and the mentally ill defendant. And build hypo cards — front is a three-line fact pattern from a supplement or from class, back is the two-sentence analysis. Those are the cards that transfer to the exam.

Use AI to transform material you already have, not to supply material you lack. Paste in your own outline section, your class notes, or your case brief and ask for question-and-answer pairs or cloze deletions. That workflow is low-risk because the doctrine originates with your professor. Asking a model to "tell me the elements of negligent misrepresentation and cite the leading case" is high-risk, because models confabulate case names and reporter citations that look exactly like real ones.

Verify every citation before it enters the deck. Check the case name and year against your casebook table of cases; check anything else on Westlaw or Lexis. A wrong citation on a flashcard is worse than no citation, because spaced repetition will drill the error until it feels true.

Two more prompt habits matter in Torts specifically. First, tell the model which rule version your course uses — Restatement (Second) or (Third), consumer expectations or risk-utility, contributory or comparative — because models default to bar-exam-calibrated majority rules, and your professor may teach a minority position as the baseline. Second, use the model as a quizzer rather than an author: give it your rule statement and a hypo, answer out loud or in writing, and ask it to identify what you omitted. That is closer to what the exam measures than recognition testing.

Leave off full case facts. You do not need the procedural history of Vosburg v. Putney; you need the rule that a defendant who commits an unlawful touching is liable for the full extent of resulting harm. Leave off block quotes longer than a sentence. Leave off floating policy rationales — attach a policy note to the rule card it justifies ("loss spreading and deterrence support strict liability here, per Traynor's concurrence in Escola") rather than giving policy its own unmoored cards.

Leave off any tort your syllabus skips, however prominent it is on bar outlines. Many first-year courses never reach defamation or the privacy torts in any depth; a premade deck will drill them anyway and burn the hours you needed for causation.

Finally, leave off any card you cannot answer within about thirty seconds. That is the reliable signal that the card contains more than one unit and should be split.