Torts MBE Tip of the Day

Answer to the Torts MBE Question

Subject: Torts

Legal Issue: Negligence per se & causation

Legal Rule and Analysis:

To succeed on a claim for negligence, the plaintiff must prove (1) duty, (2) breach, (3) causation, and (4) harm.  Even under a theory of negligence per se (whereby the defendant’s violation of a statute may itself show negligence by presuming both the “duty” and “breach” elements are met), the plaintiff must still show causation between the breach of duty and her harm.

Here, the defendant violated a statute–thus, the plaintiff would be able to prove both duty and breach. Further, the plaintiff was in the class of people the statute was aiming to protect and received an injury the statute was aiming to prevent (she was injured as a result of a fire). However, duty and breach are only two elements of a negligence claim; the plaintiff must also show causation and harm. Here, the breach of duty was not an actual cause of the plaintiff’s harm because the facts state “The fire was of such a large magnitude that even if the department store had the requisite fire sprinklers, the fire would have been the same size and magnitude and the woman would have been harmed in the same manner and to the same degree”. Thus, even though duty and breach are present, the woman cannot show that the store’s breach was the actual cause of her harm. She would have suffered the same harm regardless.

Tip: If you have trouble with analyzing “actual causation” ask: Would the same harm have occurred even if the defendant did not breach its duty? If the answer is “yes” (like in this case, the woman would have suffered the same harm) then actual causation is not present. The plaintiff must show that the defendant caused her harm. If the harm would have occurred regardless, the plaintiff did not meet its burden.

Conclusion: The woman will not prevail because the store’s breach of duty did not cause her harm.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.  The answer choice (D) is therefore correct. (A) is incorrect because while this establishes the first two elements in this instance (duty and breach), causation and harm still must be shown. (B) is incorrect because there is no strict liability in this instance. Strict liability is ordinarily applied in products liability cases, injuries by wild animals, and abnormally dangerous activities. There is no blanket strict liability rule for duties involving safety. (C) is incorrect because the statute aims to prevent injuries to persons and property. While injuries such as burns and smoke inhalation may be more obviously foreseeable than a broken arm, the broken arm was an injury directly caused by the fire as it is foreseeable that someone may try to escape a large fire and hurt themselves in the process. Further, (C) does not recognize that the woman will not be able to prove actual causation.

MBE Tip: Many students see a statute and instantly think “negligence per se!” and hold the defendant liable. Make sure to connect every dot before doing that and ask yourself if duty, breach, causation, and harm are met!