Topic 11: Torts on the MBE: Key Topics

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Torts on the MBE: Key Topics

In this post, we cover how you will see Torts tested on the MBE!  Out of the 175 scored multiple-choice questions, you can expect to see 25 Torts questions.  The National Conference of Bar Examiners (NCBE) breaks down the subject into four categories of topics, as we explain below.

Torts on the MBE: Breakdown by Topic

Below is a chart of how you will see Torts topics tested on the MBE. Negligence is by far the most important topic, making up half of the questions. The other half of the questions come from three categories: intentional torts, strict liability and products liability, and other torts.

Torts on the MBE: NCBE Subject Matter Outline 

This Torts subject matter outline is promulgated by the NCBE (and re-styled by JD Advising). You can see the four primary Torts categories that are tested as well as the topics tested within those categories. The NCBE subject matter outline is available for download here if you prefer to see it in PDF form.

Torts on the MBE: Key Topics

Note that any of the issues listed in the NCBE’s outline (above) are ripe for testing in Torts on the MBE.  You should spend the most time on the topics that are likely to come up more frequently (i.e., negligence).  However, you shouldn’t ignore concepts that aren’t as heavily tested! Here, we cover some key Torts topics on the MBE.  As noted above, the NCBE breaks Torts down into four categories: negligence, strict liability and products liability, intentional torts, and other torts.  We’ll take each of these in turn.

Negligence

Four elements

You will see about 12–13 negligence questions in torts on the MBE.   Remember that negligence questions make up half of your Torts MBE score and 1/14th of your overall MBE score. Negligence is very important to know! (It is also regularly tested on most state essay exams, including the Multistate Essay Exam.) There are four basic elements that need to be proven by a preponderance of the evidence in order to establish negligence: duty, breach, cause, and harm.  If the plaintiff cannot prove one of these, they cannot win, no matter how much you think they deserve to.  Sometimes you may see a question where, for example, a doctor will negligently fail to give a patient informed consent prior to a procedure. The patient suffers no harm during the procedure but sues for negligence. The plaintiff will not win because harm was not present. The plaintiff needs to prove all four elements to succeed in a negligence lawsuit! 

Causation

Causation can be broken down into two different parts, both of which must be proven as well.  First, the defendant’s conduct must be the actual cause of the plaintiff’s harm.  Ask yourself “but for the defendant’s actions, would the harm have occurred?”  If the answer is yes, then the defendant’s conduct was not the actual cause of the harm and there can be no negligence. For example, if I was negligently texting while driving and I rear-ended your car, you may sue me for negligence. But, if I was able to show that I would have rear-ended your car regardless of whether I was texting (for example, because it was icy outside), you will not be able to show this element of actual causation. Thus, you would not prevail in a negligence claim. Second, the defendant’s conduct must be the proximate cause of the harm.  This involves a foreseeability analysis.  When a defendant breaches his duty, think about what harms we are reasonably worried will happen.  If one of those harms is the one that occurred, then the conduct was the proximate cause of the harm.  Remember, even criminal conduct can be foreseeable. For example, let’s say we are studying at a coffee shop in a high-crime area and I ask you if you can watch my laptop while I grab a cup of coffee and you say “sure.” If you fail to supervise my laptop and a thief steals it, you will be liable. Don’t fall into the trap of picking the answer choice that states that criminal acts cut off liability. That criminal act was foreseeable in this case because the reason I would ask you to supervise my laptop in a high crime area would be to make sure it does not get stolen! Foreseeability plays a critical role in a negligence analysis.  The harm the plaintiff suffers must be foreseeable.  However, the manner in which the harm occurs does not need to be foreseeable.

Pure comparative negligence

Further, it is important to remember the default rules in torts on the MBE.  If a question asks how much a plaintiff can recover from a negligent defendant(s), you should apply pure comparative negligence as well as joint and several liability, unless otherwise told.  Under pure comparative negligence, a plaintiff will still be allowed to recover even if he was negligent himself (and indeed, no matter how negligent he was), but his damages will be reduced by his percentage of fault. Even if a plaintiff is 99% negligent, the plaintiff could still collect 1% of his damages from a defendant in a pure comparative negligence jurisdiction.  Contrast this with partial comparative negligence, where a plaintiff will be barred from recovering at all if his fault exceeds a certain threshold (usually 50%).

Joint and several liability

Joint and several liability is an issue in situations with multiple defendants.  In a joint and several liability jurisdiction, a plaintiff would be allowed to recover the entire amount of damages from either/both defendants, regardless of how much each one was at fault. (Note: the plaintiff cannot recover twice, and one defendant could then go after the other defendant for their fair share).  In a several liability jurisdiction, the amount a plaintiff can recover from a defendant is capped proportionally to that defendant’s personal fault. Joint and several liability jurisdictions are plaintiff-friendly as they allow a plaintiff to recover from any of the defendants. Several liability jurisdictions are defendant-friendly, as a defendant will never pay more than its fair share. Remembering the policies behind the rules will help you better remember the rules.

Strict liability and products liability

You will see about 4–5 strict liability and products liability questions in Torts questions on the MBE.  Remember that there is no mindset required for a strict liability tort.  One can be guilty regardless of their good intentions or any precautions taken against harm.  To recover for a strict liability tort, the plaintiff must prove a duty (an absolute duty in these cases), causation, and damages. Pay close attention to the call of the question. For example, if a plaintiff is suing for a defective product but alleges negligence, do not apply a strict liability analysis.

There are three main scenarios to look for: wild animals, abnormally dangerous activities, and products liability (although products liability questions also can involve negligence or breach of warranty, so read the question carefully, as noted above).  The NCBE can try to trick you with questions involving animals that are not wild.  Pay close attention to the animal that is causing harm, as domesticated animals (such as cats, dogs, and livestock) will not give rise to a strict liability situation. Note: Farm animals are not considered wild animals!   It also does not matter whether the owner has knowledge of the animal’s violent tendencies or if the animal is secretly not dangerous.  For strict products liability, focus on the product and not the defendant’s actions.  Even a defendant who acts reasonably is liable if you can prove the elements!

Intentional torts

You will see about 4–5 intentional torts questions in Torts on the MBE.  The most commonly tested intentional torts are battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to chattels, and conversion.  Again, be aware of the mindset of the defendant.  To be liable for one of these torts, the defendant needs to act with intent.  Negligent or accidental conduct will not suffice.  Note, however, that intent can be transferred when we are dealing with assault, battery, false imprisonment, and trespass to land/chattels.  When one intends to commit a tort against one person, they still can be guilty if one commits a different tort against that person, the originally intended tort against a different person, or a different tort against a different person.

Other torts

Finally, you will see about 4–5 questions on other torts on the MBE.  The torts that appear more frequently are defamation, privacy torts (intrusion, appropriation, false light, disclosure), and nuisance.  Rarely might you see torts such as malicious prosecution, intentional interference with business relations, and misrepresentation. In fact, many courses omit these latter torts from their lecture handouts.

Of the aforementioned torts, defamation certainly is the one with the most nuances and is the easiest to test.  There are four basic elements for defamation: (1) a defamatory statement about the plaintiff, (2) an unprivileged publication of the statement, (3) fault (at least negligence but a higher standard of “malice” for public figures), and (4) damages.  If you see a defamation question, make sure you identify the type of plaintiff and the matter that the statement concerns, as this can affect the elements that the plaintiff needs to prove to prevail. 

If the statement is about a private figure regarding a matter of public concern, the plaintiff must prove the above four elements plus falsity.  However, if the statement is about a public figure, the plaintiff must prove the four basic elements plus falsity, but the level of fault required on the part of the defendant is malice.  Properly categorizing the type of plaintiff and matter that the statement concerns can also help you eliminate answer choices that discuss the wrong elements!

Go to the next topic, Topic 12: Where to Find the best MBE Practice Questions.

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