MBE Tip of the Day: Torts

Answer to the Torts MBE Question

Subject: Torts

Legal Issue: How much can the man recover from the city – especially given that he was 10% negligent and the city was 5% negligent?

Legal Rule and Analysis:  The “default” on the MBE is pure comparative negligence. So, the man can still recover damages even if he was negligent (no matter how negligent he is!). His damages will simply be reduced by the negligence of the others. He will not recover the full amount of damages since he was 10% negligent. He will recover $90,000.

The second relevant default rule is joint-and-several liability on the MBE. This means that the man can recover from either defendant but cannot recover twice. Thus, the man can seek $90,000 from either or both defendants, but cannot recover twice. After the city pays the $90,000, it could attempt to recover the $85,000 from the driver.  However, note that if the driver does not have $85,000 to give the city, then the city is out of luck and will end up paying more than its fair share!)

Conclusion: The man could recover $90,000 from the city.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.  The answer choice (B) is correct.

(A) is incorrect because under a joint-and-several liability theory, the plaintiff can recover the total amount of damages from one defendant (then leave it to the defendant to seek contribution from his co-defendant(s)).

(C) is incorrect because the man was 10 percent negligent so under a pure comparative negligence approach, his damages will be reduced by 10 percent. (Note: The result would be the same under a partial comparative negligence jurisdiction.)

(D) is incorrect. This answer choice would be correct under the common law doctrine of contributory negligence, but that is not followed on the MBE so do not apply it unless you are specifically told to do so.

Why is joint and several liability followed? This problem illustrates how joint-and-several liability jurisdictions are plaintiff-friendly. The plaintiff may recover all of his damages from one defendant (the city, above), and if the other defendant (the driver) cannot contribute $85,000, then the city will be the one holding the bag in the end (and paying more than its fair share!). The plaintiff will still recover the damages owed.

What would the result be in a jurisdiction that follows several liability? Remember in a several liability jurisdiction, no defendant pays more than their fair share. Thus, these jurisdictions are defendant-friendly. So, under the facts above, the plaintiff would only recover $5,000 from the city and it could recover $85,000 from the driver. (If the driver had no money and was insolvent, the plaintiff could not go after the city for the remaining amount.)

On the MBE, the plaintiff-friendly rules of pure comparative negligence and joint-and-several liability apply unless otherwise stated.

MBE Tip: Learn the theories behind the laws to remember them better. If you remember the reason for joint-and-several liability, you will likely not mix it up with several liability and you will get the answer right on the MBE!.