Torts on the Multistate Essay Exam: Highly Tested Topics and Tips
Torts is regularly tested on the MEE. Thus, it is important to be aware of the key principles that are tested and how to approach this MEE topic generally.
Torts on the Multistate Essay Exam
1. First, be aware of how Torts is tested
Torts is tested about once a year on the MEE. While it is frequently tested on its own, it has been combined with Agency. For example, Torts was recently tested on the MEE with Agency on issues of vicarious liability of an employer.
The way that Torts is tested on the MEE is fairly predictable because the examiners test basic tort principles. If you are familiar with the highly tested Torts MEE topics, you should be well on your way to writing a high-scoring Torts MEE answer.
2. Be aware of the highly tested Torts issues
The examiners tend to test several of the same issues in Torts MEE questions. You can maximize your score by being aware of these highly tested issues. (We have a summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)
Some of the highly tested Torts MEE issues include:
Negligence is by far the most heavily tested Torts MEE topic. Thus, it is important to focus on this topic. The basic elements of a negligence claim are (1) duty, (2) breach, (3) causation (both actual and proximate), and (4) damages. It is critical to understand these four elements. Many students think they understand negligence but struggle with the topics of actual/proximate causation and duty. If you find yourself in this situation, we recommend that you seek tutoring, rewatch your bar exam course lectures, or seek other help. Causation and duty are tricky topics that are highly tested on the MEE! Additionally, causation also appears in Criminal Law MEE questions. So, taking the time to understand causation is time well spent.
Further, negligence is the most highly tested topic on the MBE. Make sure you learn negligence well!
Children and duty
Generally, a child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances. An exception to this rule is when the child is engaging in an adult activity, such as driving a car or shooting a gun. In those circumstances, the child is held to the same duty of care as an adult. Additionally, some states follow the tender-years doctrine, where children under a certain age (e.g., seven years old) cannot be found negligent (although this is not commonly applied on the MEE).
This rule states that the defendant is liable for the plaintiff’s uncommon and unforeseeable harm or reactions to the defendant’s negligence. (This rule also applies in intentional torts.) The defendant takes the plaintiff has he finds him, so if the plaintiff has a disorder that makes their bones break easily, the defendant is liable for that harm even if the defendant was not aware of the plaintiff’s disorder.
This topic has turned up frequently on Torts MEEs in the past. The premise possessor’s standard of care depends on the plaintiff’s legal status at the time of entry.
- Undiscovered trespassers: These plaintiffs are not owed any duty of care but the landowner cannot act willfully or maliciously by setting traps, for example.
- Discovered trespassers: If the premise possessor knows or should know of the trespasser’s presence on the land), then the premise possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the premise possessor knows of.
- Licensees: These are social guests like friends or family. The premise possessor owes to licensees the duty to warn or make safe all concealed dangers that the premise possessor knows of. However, there is no duty to inspect.
- Invitees: These are persons who are invited onto land to confer an economic benefit (e.g., customers of a business) or land that is open to the public. The premise possessor must warn or make safe all dangers that the premise possessor knows or should know of. For this category of entrants, there is a duty to inspect.
Negligence per se
Consider negligence per se if you see a Torts MEE that presents a statute that establishes a duty of care. To sue under a theory of negligence per se, 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 the plaintiff can show these three things, then the plaintiff has proven the duty and breach elements of negligence.
Remember that the plaintiff must still prove causation and harm!
To recover for a strict liability tort, the plaintiff does not need to show that the defendant breached their duty. However, the plaintiff must still show duty (in this case, absolute), actual and proximate causation, and harm. The three categories of strict liability torts are (1) wild animals, (2) abnormally dangerous activities, and (3) strict products liability. Strict products liability has frequently been tested on the MEE. For a strict products liability claim, the plaintiff must show that (1) the defendant is a merchant, (2) the product had a defect (manufacturing, design, or absence of warning or instructions), and (3) the plaintiff used the product in a foreseeable way at the time of the injury.
3. Spend a lot of time on negligence to earn points on the MEE and the MBE
Negligence is the most highly tested topic in Torts on the MEE. It is also the most highly tested topic on the MBE portion of the bar exam (with 12–13 questions covering negligence!). Dedicating a lot of time to mastering negligence is an excellent way to study efficiently for the bar exam.
Practice is critical if you want to master Torts on the MEE.
Here, we provide you with some links to free Torts MEE questions and NCBE point sheets. (If you would like to purchase a book of Torts MEE questions and NCBE point sheets, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)
- July 2021 Torts MEE: this MEE covers negligence, child’s duty of care, physical disability, invitee status, rescuers, and joint and several liability.
- February 2019 Torts MEE: this MEE covers negligence; standard of care; proximate cause; res ipsa loquitur; and joint and several liability.
- July 2017 Torts MEE: this MEE covers abnormally dangerous activity; negligence, proximate cause, and vicarious liability of employer for independent contractor.
- July 2016 Torts MEE: this MEE covers negligence and strict products liability.
- February 2015 Torts MEE (combined with Agency): this MEE covers negligence per se and vicarious liability of an employer.
Go to the next topic, Decedents’ Estates.
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