MBE Strategy of the Day – Torts MBE tips!

Answer to the Tort MBE Question & Tort MBE Tips

Common Mistake: Students tend not to understand damages in torts!

Subject:  Torts

Legal Issue: What will the woman recover in damages from the man?

Legal Rule and Analysis:  Under a theory of joint-and-several liability, the woman can recover her full damages amount from either or both defendants (however, she cannot recover twice). This is the default rule on the MBE. (So if the question does not specify whether the jurisdiction follows joint-and-several liability rules, assume that it does!) Joint-and-several liability favors the plaintiff because she will be able to recover all of her damages even if one of the defendant’s is insolvent (i.e., doesn’t have any money). If this was a several liability jurisdiction, that would favor the defendant and the plaintiff would only be able to recover the $70,000 from the driver and the $20,000 from the passenger. (Several liability jurisdictions protect defendants against paying more than they technically owe.)

The fact that the woman was at fault would not bar her from recovering damages. The question specifies that “pure comparative negligence” approach is followed. (Even if the question does not specify that, apply this unless it says otherwise as this is the default on the MBE.) This means a plaintiff can recover no matter how at fault she is. Her damages will simply be reduced by her percentage of fault – in this case 10%. (Note that this is a stark contrast to the common law contributory negligence doctrine which would preclude the plaintiff from recovering.)

So, here the woman’s damages are $100,000 but she is 10% at fault so under a pure comparative negligence standard, she will be able to collect $90,000. Because the jurisdiction follows joint and several liability, she will be able to collect this entire damages award from either defendant (the driver or the man) but she cannot collect twice. So (B) is the correct answer as she could collect $90,000 from the man. (The man will then seek “contribution” from the driver in the amount of $70,000 since the man himself was only 20% at fault.)

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:   (B) is correct for the reasons stated above. (A), (C), and (D) are incorrect for the reasons stated above.

MBE Tip: Remember the Tort “default” rules — that is, the pure comparative negligence standard will apply unless you are told otherwise. And the joint and several liability doctrine will apply unless you are told otherwise.