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Tips for Torts on the Multistate Essay Exam

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Torts on the Multistate Essay Exam

Tips for Torts on the Multistate Essay Exam

After discussing Real Property last week, this week we move on to tips for Torts on the Multistate Essay Exam.  When thinking about Torts on the Multistate Essay Exam, you should consider two questions: how is it tested? And how often is it tested?  In the last 10 years (20 administrations), we’ve seen Torts on the Multistate Essay Exam 7 times by itself and 2 times tested with other subjects.  As with Real Property, it also seems to be turning up less frequently.  In the last 9 administrations, we’ve seen Torts on the Multistate Essay Exam as a stand-alone essay only twice.

Tips for Torts on the Multistate Essay Exam

However, that’s not to say that you should deem this subject too rare to be worth your time!  Seeing Torts on the Multistate Essay Exam is still a very viable possibility.  These statistics only tell you how much to study for the subject, not whether to study for it at all.  Spend the most time on the subjects that are the most likely to come up.  But you should not be skipping over any of the potential subjects when you are preparing for the exam!

Here are the most commonly tested topics in Torts on the Multistate Essay Exam:

Negligence

When we see Torts on the Multistate Essay Exam, negligence is by far the most heavily-tested topic.  Thus, it would be very beneficial for you to focus significantly on this issue.  In general, remember that the basic elements are: duty, breach, causation (both actual and proximate), and damages.  Duty and breach are probably the elements most ripe for testing.  When thinking about these elements, consider the following sub-issues:

Children and their duty

Generally, a child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances. One exception is when the child is engaging in an adult activity.  Additionally, some states follow the “tender years doctrine,” where children under the age of 7 cannot be found negligent.

Premises liability

This topic has turned up in three of the most recent years that we’ve seen Torts on the Multistate Essay Exam.

  • So, remember that the standard of care owed depends on the legal status of the plaintiff.  Undiscovered trespassers are not owed any duty of care.
  • By contrast, if the trespasser is “discovered,” then the landowner must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of.
  • For licensees, most MEE answers state that landowners owe the duty to reveal hidden dangers of which the landowner knows or has reason to know and which the entrant is unlikely to discover.  (However, there is no duty to inspect).
  • Finally, regarding invitees, the landowner must warn or make safe all dangers that the landowner knows or should know of.  For this category, there is a duty to inspect.

Negligence per se

If a question involving Torts on the Multistate Essay Exam presents a statute that establishes a duty of care, you should consider negligence per se. To sue under this theory, the plaintiff must show that (1) the defendant violated the statute without excuse; (2) the plaintiff was in the class of people the statute was trying to protect; and (3) the plaintiff received the injury that the statute was trying to prevent. If these three things can be demonstrated, then the plaintiff has proven the duty and breach elements of negligence.

Remember that just because the plaintiff proves elements of duty and breach does not mean that they automatically win the case! The plaintiff must still prove cause and harm!

Vicarious Liability (usually coupled with Agency).

Vicarious liability is a more commonly tested topic in Torts on the Multistate Essay Exam.  You should understand that employers or principals are vicariously liable for torts of their employees or agents if the torts are committed within the scope of their employment.  This is usually considered both a Torts and an Agency question when it is tested as this is a common Agency principle.

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