Torts MBE Tip of the Day
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on torts.
You will see 25 scored torts MBE questions on the Multistate Bar Exam. In this post, we will review a torts question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
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MBE Tip of the Day Instructions
Do your best to answer this torts MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Show the MBE Question...
Torts MBE Question
A woman was walking down the street, trying to choose which emoji to text her friend. Because she could not decide between two emojis, she walked into the street without looking both ways. A bicyclist, who was not paying attention to where he was going, struck the woman. The woman suffered injuries.
Instead of seeking prompt medical treatment, the woman texted her friend a sad face emoji and went home. Later that day, the woman’s injuries got significantly worse due to her failure to seek prompt medical treatment.
The woman filed a lawsuit against the bicyclist, claiming that the bicyclist was negligent. The jury determined that the woman was 30% at fault and the bicyclist was 70% at fault for the collision. The jurisdiction follows the theory of pure comparative negligence.
What damages will the woman recover?
(A) All of her actual damages because the defendant “takes the plaintiff as they are” and it is foreseeable that a plaintiff could be negligent and fail to seek medical treatment.
(B) 70% of her actual damages plus punitive damages.
(C) 70% of her actual damages less any damages that could have been avoided by seeking reasonable medical treatment.
(D) She will not recover any damages.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Show the Answer to the MBE Question...
Answer to the Torts MBE Question
Legal Issue: Negligence
Legal Rule and Analysis: Negligence involves an accidental injury where the defendant owed a duty to the plaintiff, the defendant breached that duty, the plaintiff suffered damages, and the defendant’s actions were the actual and proximate cause of the plaintiff’s damages. The amount of damages the plaintiff recovers will depend on the approach utilized by the relevant jurisdiction. In a pure comparative negligence jurisdiction, the woman’s damages would be reduced by her percentage fault. Plaintiffs also have a duty to mitigate their damages. If the plaintiff could have prevented or reduced the amount of harm suffered but did not do so, then the defendant will not be liable for the amount of damages that could have been mitigated. Punitive damages are not recoverable in negligence actions, as punitive damages are only awarded when the defendant acts willfully or maliciously.
In this case, we are told that the woman was 30% at fault, that the bicyclist was 70% at fault, and that the jurisdiction follows the theory of pure comparative negligence. This means that to start with, the woman’s damages will be reduced by 30% to account for her level of fault. We are also told that she failed to seek proper medical treatment. If seeking treatment could have mitigated her damages, she was obligated to do so, and the bicyclist is not going to be liable for the harm that could have been prevented by her actions.
Conclusion: The woman should recover 70% of her actual damages less any damages that could have been avoided by seeking reasonable medical treatment.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (C) is therefore correct. (A) is incorrect because it is a misstatement of the eggshell skull rule. The defendant’s liability will be reduced if the plaintiff was at fault, as mentioned above. (B) is incorrect because a plaintiff will not recover punitive damages in a negligence action. In order to recover punitive damages, a plaintiff must prove the defendant acted willfully or maliciously. In this case, the defendant was merely negligent. (D) is incorrect because the woman will recover some damages, as noted above. The damages she will receive will simply be reduced by her percentage fault and any damages she could have avoided by acting reasonably.
MBE Tip: The plaintiff’s actions are often just as relevant as the defendant’s in determining what the plaintiff can recover. While the primary focus is rightfully on whether the defendant committed a wrong that it should be held liable for, the plaintiff is held to a reasonable standard of care as well. Therefore, when you read a fact pattern, don’t ignore the plaintiff’s actions in favor of focusing only on the defendant.
Show Summary of the Two Key Takeaway Points for the Day
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: In a pure comparative negligence jurisdiction, the woman’s damages would be reduced by her percentage fault.
MBE Tip: When reviewing a fact pattern, don’t ignore the plaintiff’s actions as they are also likely to be relevant to the outcome.
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