Torts MBE Tip of the Day

Answer to the Torts MBE Question

Subject: Torts

Legal Issue: Negligence and Breach of Duty

Legal Rule and Analysis: To succeed on a claim for negligence, the plaintiff must prove (1) duty, (2) breach, (3) causation, and (4) harm.  In a premises liability situation, the duty that is owed to a plaintiff depends on the plaintiff’s status on the land.  A licensee is a social guest who has permission to enter the land but doesn’t confer an economic benefit on the possessor of the land.  A land possessor has a duty to a licensee to warn or make safe all concealed dangers that the possessor knows of.  The duty and breach of duty aspects of negligence are all about acting as a reasonable person would under the circumstances.  Thus, any possessor must act as a reasonable person would in warning of or making safe all known dangerous conditions on the land.

In this case, the neighbor is a licensee as she had permission to enter the land but was not there to confer an economic benefit on the man.  The man, therefore, had the duty to the neighbor to warn or make safe all concealed dangers that he knew of.  The man knew the stair was wobbly and so he created a warning sign to post, indicating to anyone walking up the stairs that the wobbly stair posed a danger.  The text of the sign was in all capital letters and posted in a conspicuous place.  This was certainly a reasonably sufficient warning and the man acted as any reasonable person would when warning of this danger and it satisfies his duty owed to licensees.

Conclusion: The man will prevail because he did not breach his duty to the neighbor.

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 the man did not have to make the dangerous condition safe as long as he maintained an adequate warning of it.  The duty owed to a licensee is to warn or make safe, and thus the fact that the man did not immediately fix the step does not mean he automatically breached his duty. (B) is incorrect because just because the step caused the woman’s injuries does not mean that the man is automatically liable. The woman still has to show that the man breached a duty of care owed to her.  (D) is incorrect for two reasons. First, it does not recognize that the man did not breach a duty of care. Second, even if the jury did find that the woman assumed the risk, under the pure comparative fault scheme that is to be applied on the MBE, the man would still be liable if he breached a duty; the woman’s damages would merely be reduced by the percentage of the fault attributed to her.

MBE Tip: Do not feel bad for a vulnerable plaintiff!  The examiners would include this elderly lady who was recovering from a broken hip in order to make you feel like she should recover something.  Always make sure there is a legal theory for recovery!  If the defendant acted as a reasonable person would, there can be no recovery for negligence.