Star date TK421 – As we traveled through the bar exam sector, past the law school paradox generator, we came across the MBE nebula cluster. There, we encountered a living gas cloud that transmitted a message to our UWorld Starship’s computer. “I am the MBE Torts Conundrum,” the cloud said. “Turn back now, Starship, or prepare to perish.”
We exchanged glances on the bridge. Our mission was to transport bar examinees to the bar license galaxy safely, and we knew that passing through the MBE nebula cluster—and past this Torts Conundrum—was the only known route to reach our destination. The first strategy officer requested a readout of the elemental makeup of the Torts Conundrum, which we accessed from the ship’s database.
|Topic||Negligence||Intentional Torts||Strict Liability and Products Liability||Other Torts|
|# of Questions||12-13||4-5||4-5||4-5|
The first strategy officer read the data card. “Hmm. The Torts Conundrum is nearly 50% negligence theory. To get past it, I suggest we deliver three controlled bursts of test-taking and study strategy into the cloud. That should disrupt it enough to allow us to pass through.” The crew scurried to the ship’s weapon control system, and we began loading strategies into the ship’s fusion cannon.
1. Tort Detection
One effective strategy against the Torts Conundrum is to classify the tort before getting to the answer choices. Like MBE Criminal Law & Procedure questions, torts questions give the examinee every fact they need to determine whether a tort has occurred and that tort’s classification. In fact, the call of the question will often tell you which tort is at issue. When that’s the case, this first step is easy!
However, if the tort at issue is not explicitly stated, you might need to read the rest of the question stem to make this determination. Once you identify the tort (or torts) at issue, try to recall that tort’s elements and any common defenses. That way, you can attempt the question before looking at the answer choices.
2. The Reasonable Person
Our ship’s data regarding MBE Torts indicates that half of MBE Torts questions test on negligence and require examinees to use their own judgment to determine whether a person breached a duty of care toward another. The curious thing about this judgment call is that it allows many examinees to intuitively determine whether a breach of this duty has occurred.
On the exam, look inward and ask yourself—is that how a reasonable person would behave? This strategy will generally allow you to make a good guess about whether liability should be imposed. But note: the MBE is based on Earth law, and the reasonable person standard is based on the general conduct of Earthlings. Any examinees from the Andromeda Galaxy will need to compensate accordingly.
3. The Foreseeability Complex
A theorist named Cardozo once argued that conduct was the legal (ie, proximate) cause of damage only if the damage was a reasonably foreseeable consequence of that conduct. Thus, the foreseeability complex was born and has been confusing examinees ever since. When facing questions about proximate cause, examinees should ask themselves, “Could I see this happening in real life because of this conduct?”
For example, being transported off-ship is a reasonably foreseeable consequence of playing hide-and-seek in the transporter bay. But causing an interplanetary war between the Glorks and the Hek’trawls is probably not the foreseeable consequence of refusing to eat a fresh-baked Glorkian rock scone.
We loaded these three strategies into the fusion cannon. “Fire when ready,” the first strategy officer commanded. The three strategies merged into a single stream that shot out across space and hit the Torts Conundrum in the middle of its cloud-like mass. Then the captain herself ordered that we give all the examinees on board a UWorld MBE Torts practice question to distract them from the epic space battle outside of their view screens:
Here, the question stem doesn’t say which tort is at issue, so we’ll need to pay special attention to the facts presented to classify the tort. This question is likely about negligence because we have several instances of actors failing to use reasonable care (throwing a ball in the air in a crowded place, administering CPR despite not knowing CPR, and misdiagnosing a patient). The question discusses several injuries and asks for which injuries the fan will be found liable. In other words, which injuries did the tortfeasor proximately cause?
An added complication in this question is that there are two intervening actors—the man and the nurse—and we need to determine if their interventions broke the foreseeability chain between the fan’s conduct and each of the woman’s injuries.
Here’s what our crew put together to answer this one:
Ask yourself, could you see these injuries happening in real life because of the fan’s conduct? The crew thinks so. Hitting someone on the head with a ball is a reasonably foreseeable consequence of throwing a ball up into the air. Someone performing CPR incorrectly on an injured person is the reasonably foreseeable consequence of harming a person. And misdiagnosing a person is a reasonably foreseeable consequence of trying to diagnose someone. This means that the fan is likely liable for all of the woman’s injuries.
Star date TK422 – We defeated the MBE Torts Conundrum and are smoothly sailing to the bar license galaxy. While the journey was not the easiest for the examinees, they’ll know it’s worth it once they reach their destination. As for the crew, we’ll return to bring more examinees on the journey. We transmitted a message back to our starbase—examinees can find a free trial of UWorld’s bar prep product here. Hopefully, more MBE space explorers can join us on Starship UWorld.