Torts
Accidents are bound to happen no matter how prepared we are or how well we protect ourselves. It's impossible to control every factor or every person around us, which is why torts (more commonly known as personal injury law) is a fundamental part of practicing law. Unlike contract law, torts is an area of private law that deals with the interpersonal wrongdoings between private people, not necessarily or willfully, under a contract. The scope of torts constitutes a wide variety of situations, from mere negligence to intentional harm. Thus, it is one of the fundamental subjects that makes up the Multistate Bar Exam (MBE®). Of 175 scored multiple-choice questions, Tort questions comprise 25 of them.
Torts Breakdown by Topic, Weightage and Tested Questions
To prepare yourself for this subject of the MBE, it's essential to know how this section is organized. As you can see in the chart below, the National Conference of Bar Examiners (NCBE®) has divided torts into four subtopics: 1) Negligence, 2) Intentional torts, 3) Strict liability and products liability, and 4) Other torts. The most highly tested category of torts by far is Negligence, which makes up 50% of the torts questions (12-13 questions). The other 50% of the MBE torts questions are divided equally into 4-5 questions for each of the remaining categories: intentional torts, strict liability and product liability, and other torts.
| Torts Subtopics | Percent tested | No. of Questions |
|---|---|---|
| Negligence | 50.0% | 12-13 |
| Intentional torts | 16.7% | 4-5 |
| Strict liability and products liability | 16.7% | 4-5 |
| Other torts | 16.7% | 4-5 |
| Total scored questions for Torts | 25 | |
Negligence
We'd be negligent if we didn't emphasize the importance of thoroughly understanding the topic of negligence since it makes up 50% (12-13 questions) of Torts and determines 1/14th of your overall score on the MBE. Moreover, it is tested on most state exams, including the Multistate Essay Exam (MEE®).
Generally speaking, to establish negligence, four main elements need to be proven with evidence: duty, breach, cause, and harm. Remember that it only takes one of these factors to be missing for a reason for dismissal. For example, if someone slips and falls on a 2x4 left negligently on the sidewalk, but there was no harm done, there is no claim to be had!
Of these four, duty tends to be one of the trickiest topics for test-takers. For example, first, one must determine whether the defendant owed the plaintiff a duty of care and whether that duty was reasonably breached. While this standard may seem cut and dried, the expected duty of care depends on whether the defendant is a child, a mentally impaired individual, or a professional. For example, suppose the defendant is a child. In that case, the rule is that they owe a duty of care to a child of similar age, intelligence, and experience, acting under similar circumstances unless they are involved in an adult activity (i.e., shooting a gun or driving).
Similarly, there are special cases in which a relationship creates a duty to act if one sees that the other is exposed to harm. Such is the case regarding physician/patient, business owner/customer, employer/employee, legal guardian/minor, and carrier/passenger relationships. Also, don't forget that there are cases in which a defendant is held liable for the actions of others, known as vicarious liability, such is commonly the case regarding employer/employee relationships, parents of minor children, and owners of animals.
Property owners are also held liable for any injuries incurred on their property. The level of duty depends on the type of owner and the type of visitor to their premises (invitee, licensee, or trespasser). The highest degree of duty and care is owed to invitees, such as customers, who are invited onto the premises for business activities. Under the law, they are owed a safe space and/or the knowledge of any hazards on the premises, so a lot of claims made in these situations are due to slip and fall accidents or falling objects. On the other hand, there is little duty owed to a nonminor or an undiscovered trespasser.
The other tricky requirement for a tort case is to prove that the breach of duty caused both actual and proximate harm to the plaintiff. To do this, one must apply two tests to the scenario. First, you should use the "but-for" test to determine if the breach directly caused the harm. For example, you should ask yourself: but for the defendant's actions, would the harm have occurred? If the answer is still yes, then the harm is not a direct result of the defendant’s actions or breach. Second, you need to determine whether the harm was a reasonably foreseeable consequence of the breach and whether there was no unforeseeable, intervening, or superseding event to disturb the chain of events from breach to harm.
Once negligence has been proven, the injured party can recover compensatory damages in the amount equal to the fair market value of the total losses incurred. Generally, these damages cover medical costs, property damage, and lost wages. However, it is possible to recover additional compensation for intangible things such as emotional distress (though harder to prove), consortium for the victim's family, nominal damages, or, if the defendant's actions were particularly reckless, punitive damages. Furthermore, the defendant may be held responsible for a plaintiff's injuries even if they stem from a pre-existing condition per the eggshell-skull or "thin skull" rule.
When the proof of fault or negligence is lacking, there are two legal doctrines that may assist the plaintiff in seeking damages: negligence per se, which can be employed when the defendant has violated a statute designed to protect the plaintiff or res ipsa loquitur, which allows negligence to be inferred based on surrounding circumstances.
When there are multiple defendants, one must apply joint and several negligence. Remember that in a joint and several liability jurisdiction, the plaintiff can recover damages from both/either defendants regardless of their degree of fault; whereas, in a several liability jurisdiction, a defendant can only be held liable for the maximum amount for which he was responsible.
On the flip side, certain defenses can be applied to reduce or limit a defendant's liability for damages, such as contributory negligence, which takes the plaintiff's fault into consideration. For example, if a plaintiff is hit by a car while jaywalking, he is also considered partly responsible for his injuries. Most states apply the rule of pure comparative negligence, which says that the amount of recoverable damages will be reduced by the percent of the plaintiff’s fault. Some states compromise by using a modified rule that bars a plaintiff from collecting if they are more than 50% liable. In contrast, a few states don't allow plaintiffs to recover damages if they are found to be negligent (even 1%).
The strongest defense against a negligence claim is based on the assumption of risk whereby the plaintiff's participation implies their consent of the known dangers of the activity or they willingly signed a liability waiver. This defense is commonly applied to claims based on adventure/extreme sports or other risky activities.
Intentional torts
While negligence makes up half of the Torts questions on the MBE, that does not mean that the other topics should be neglected (see what we did there?). Be sure to prepare yourself for about 4-5 questions on intentional torts. To be held liable for an intentional tort such as battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to chattels, and conversion, one must be able to prove that the defendant had an intent or mindset to harm and it wasn’t just negligent behavior. To prove intent, there are two ways of establishing proof: when the defendant acts to cause specific results or when the defendant has a substantial certainty that an act will have a certain result.
On the other hand, there are some viable defenses that a defendant may employ to escape liability in an intentional tort case. For example, some common justifications are self-defense, or the defense of property or of others, in which the defendant must prove there was real and imminent danger, and assault and battery to a proportionate degree was the only reasonable way to stop it. Another common defense is that the defendant had a special privilege or consent to act, such as the parental discipline of a child, or that there was either explicit or implied consent by way of willing participation.
Strict liability and products liability
Next, you should see about 4-5 tort questions on strict liability and product liability on the MBE. Strict liability is a way for a plaintiff to collect damages without proving negligence. Therefore, when it comes to strict liability, focus on the product instead of the defendant's actions. All a plaintiff needs to prove is duty, causation, and damages and NOT whether the defendant had good intentions, acted reasonably, or took precautions. Common situations that fall under strict liability include abnormally dangerous activities, wild animals, and product liability (with the exception of breach of warranty or negligence in some cases). Note that domesticated and farm animals do NOT fall under a strict liability case, even if they were known to have violent tendencies.
Other torts
Finally, you will find 4-5 Tort questions based on other torts. This category's most commonly tested topics include defamation, privacy torts (intrusion, appropriation, false light, disclosure), and nuisance. Of these torts, the most nuanced type is defamation, which depends on whether the plaintiff is a private or public figure and the matter the statement concerns. For example, suppose the plaintiff is a non-public figure, and the issue is a matter of public concern. In that case, there needs to be 1) a defamatory (false) statement about the plaintiff, 2) an unprivileged publication of the statement, 3) negligence, and 4) damages. However, if the plaintiff is a public figure, the fault needs to be on the level of malice.
How to Study for Torts on the MBE
Now that you’ve had a refresher on the topics you’ll encounter in Torts , it’s time to devise a strategy on how to tackle a question on torts. Not sure how to get started? Read some of our helpful steps and tips below:
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Classify the Tort in Question
Firstly, identifying and classifying the tort is a good idea before reading the answer choices. This is easy when the facts are laid out for you in the call of the question. Other times, if it is not explicitly stated, you may need to find clues in the rest of the question stem. Once you identify the tort (or torts) in question, you should recall the tort's principal elements and common defenses for them.
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Ask Yourself: What Would You Do?
The main question to ask yourself when it comes to a MBE torts question is: How would a reasonable person behave in this situation? The answer will help you make one of the most difficult determinations in any torts case: did the defendant owe the plaintiff a duty of care, and was that duty breached?
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The Foreseeability Test
After establishing that a duty of care was breached, you should confirm that there was proximate (legal) cause, meaning that the conduct directly and foreseeably caused the harm. To determine this, you should ask yourself: Could I see this happening in real life because of this conduct, or did some other outside or unforeseen cause intervene? For example, a foreseeable result is hitting a parked car while texting and driving in a parking lot. In contrast, a piano falling on the roof of your vehicle is certainly not.
While this seems obvious, the situation can get more complicated when a chain of events leads up to the final harm or injury. In that case, you must examine whether the foreseeability chain was broken or held intact. For example, suppose you were texting while driving in a parking lot and hit a parked car that had a dog in the front passenger seat that was killed. In that case, it is reasonable to think that you should also be held liable for the dog's death and the damage to the parked car (the chain of events was foreseeable). On the other hand, if the dog had jumped out the window when you hit the car, and then the dog got crushed by a falling meteor, you would not be responsible for the dog's death because the falling meteor could not have been predicted.
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Trespass v. Conversion
Test-takers tend to confuse these two types of intentional torts because they both deal with the wrongful taking of personal property. Therefore, an excellent way to distinguish between the two is to consider the level of interference. For example, trespass to chattels is a minor interference that allows the plaintiff to recover actual damages due to repair costs and loss of use, whereas conversion results in such serious interference that the plaintiff should be entitled to recover the full value of the chattel.
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Products Liability
For any product liability claim, the plaintiff must prove that a product was defective at the time it was sold, so it is essential to know the different types of defective product claims to be successful with this type of question on the torts bar exam. The three types of defects arise from either damage to a product during the manufacturing process, a problem in the design of the overall product line that makes it dangerous, or a failure to warn the consumer about any foreseeable and unobvious risks of harm that a product poses when used in a reasonable manner.
Know about highly tested issues
Not only is Torts tested on the MBE exam, but it is also regularly tested on the MEE. Much like on the MBE, the most heavily tested topic on torts on the MEE is negligence—alone or in conjunction with an employer's vicarious liability. Hence, it's a good idea to spend much of your time studying the four essential elements needed for negligence claims, especially the more complicated factors—duty and actual and proximate cause. Other highly tested issues on the MEE include the eggshell-skull rules, the duty of care expected of special populations such as children, premises liability depending on the type of visitor, strict liability rules, especially the requirements for a products liability claim, and how to apply the theory of negligence per se when a tort question presents a statute that establishes duty of care.
Practice
Think you already have what it takes to ace the torts portion of the MBE? Even if you feel pretty confident about Torts, it's important to remember that the Tort questions on the MBE are meant to be challenging enough to mislead even the best students. Test-takers tend to make the same common mistakes year after year. Hence, the best preparation for the exam is to practice with the Tort questions and answer explanations in the UWorld MBE QBank.
Torts Sample Questions and Answers
Let’s try three Torts sample questions from UWorld’s MBE QBank:
A teenager was riding a bicycle when she saw a classmate walking toward her. The teenager rode quickly toward the classmate, knowing that he would think she would run into him on her current trajectory. The teenager was not purposefully trying to harm or touch him. The classmate saw the teenager riding toward him and yelled at her to stop. The teenager swerved at the last moment and avoided hitting him. The classmate had a panic attack because he thought that the teenager would hit him.
Is the classmate likely to succeed if he sues the teenager for assault?
- No, because the teenager did not make contact with the classmate.
- No, because the teenager did not purposefully try to harm or touch the classmate.
- Yes, because the teenager acted with the requisite intent.
- Yes, because the teenager's conduct was extreme and outrageous.
A mother went to a retail toy store to purchase a birthday gift for her eight-year-old daughter. Without inspecting it, a toy-store employee sold an electric toy oven to the mother. The toy oven could bake small batches of real food using heat generated from light bulbs located in the interior of the oven. The instructions that came with the toy oven clearly stated that adult supervision was required when operating the oven, so the mother helped the daughter use the oven to bake brownies. While the brownies were baking, a six-year-old boy who lived next door came over to play with the daughter. When the brownies were done baking, the mother allowed the boy to open the oven and remove them. As he was doing so, a broken light bulb inside of the oven suddenly caught on fire, causing second-degree burns on the boy's hands.
The boy's father subsequently filed a negligence action against the manufacturer of the toy oven. At trial, it was established that had the manufacturer or the toy store exercised reasonable care in the inspection of the toy oven, the broken light bulb would have been discovered.
Who is likely to prevail?
- The boy's father, because the manufacturer breached its duty of reasonable care toward the boy.
- The boy's father, because the manufacturer is strictly liable for the toy oven's defect.
- The manufacturer, because it was not reasonably foreseeable that the boy would be injured by the daughter's defective toy oven.
- The manufacturer, because the toy store's negligent failure to inspect the toy oven before selling it to the mother is a superseding cause of the boy's injuries.
A pregnant woman, whose due date for the delivery of her viable fetus was less than a month away, was walking in a parking lot and looking at her cell phone. She was hit by a car driven by a police officer, who had just received word of an emergency and carelessly failed to see the woman. Several days later, the woman gave birth to a child who suffered neurological damage as a result of the accident.
The woman, on behalf of her child, brought a negligence suit against the police officer for damages associated with the physical injuries suffered by the child. The woman and the police officer were found to be equally at fault for the accident.
The jurisdiction has adopted a modified comparative fault statute that bars a plaintiff from recovery against a defendant whose fault is less than or equal to that of the plaintiff.
In the child's suit against the police officer, will the child be likely to recover for her injuries?
- No, because the child was in utero at the time of the accident.
- No, because the firefighters' rule applies to police officers.
- Yes, because the child was viable at the time of the accident.
- Yes, because the woman was not at greater fault than the police officer.
Frequently Answered Questions
What are the 4 Torts topics covered on the MBE?
The 4 torts topics are: Negligence, Intentional Torts, Strict Liability & Product Liability, Other Torts
How many Torts questions are on the MBE?
Is Torts on the MEE?
What are the Most Tested Topics in MBE Torts?
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