How the MBE Approaches Torts

Torts may look very different on the MBE than they did in your law school classes. The questions tend to concentrate on a single element or defense rather than approaching each tort in a holistic way. Instead of asking, “Is this negligence?” the bar examiners are more likely to test minutiae about the applicable standard of care or the random exception to a rule that you covered for all of 30 seconds as a 1L. Even when a question is testing a garden-variety topic, the phrasing may be tricky or indirect. MBE torts questions reward you for reading closely, remembering the details, and thinking outside the box.

How You Should Approach Torts on the MBE

Spotting a Torts Question

Tort law doesn’t exist in a vacuum. Both in the real world and on the MBE, it often intersects with issues involving property, contracts, evidence, or some other substantive area. Questions about fraud, for instance, generally center on some agreement between the parties, and torts like trespass and nuisance overlap with concerns about property rights. Knowing what body of law to apply to your fact pattern is essential, but given the fast pace of the MBE, you can’t afford to spend a lot of time sorting that out. When you see a question that implicates more than one area, consider skipping ahead to the stem or glancing at the answer choices. Those parts of the question will often distill the issue for you and make sure you get on the right track fast.

Tackling a Torts Question

Classify the tort.

Once you know you’re answering a torts question, start your analysis by determining what kind of tort you’re dealing with. Is this an intentional tort? Does it sound in nuisance or strict liability or negligence? Classifying the tort at the beginning will get you thinking about the legal framework you need to apply and what elements you need to look for.

Evaluate conduct and knowledge.

Deciding what kind of tort is being tested requires you to look closely at the parties’ conduct and knowledge: what did they do, and what did they know when? Did the defendant have the knowledge necessary to show intent? Did her actions rise to the level required to breach a duty of care? Questions like these are always relevant in tort law, but they can have an even bigger impact in a multiple-choice format.

For example, prior MBE questions have turned on whether certain conduct constitutes mere negligence or whether it crosses the line dividing negligence from intentional torts. Say there’s an unwanted touching, and you’re debating whether it constitutes battery. If the fact pattern doesn’t tell you the defendant had intent, you’re leaning toward negligence, and certain answer choices are looking more attractive to you than others. But don’t forget that intent can be implied from the defendant’s knowledge. Did the defendant know with substantial certainty that her act would cause a particular result? If the facts in your question support that conclusion, you may be looking at battery, not negligence—and you should probably be considering a different answer.

Identify the possible defenses.

Classifying the tort will help with the next step of your analysis: deciding what defenses might be available. If it’s an intentional tort, for example, your defenses will be limited to the privileges. If it’s a dignity tort, there might be a First Amendment exemption. If it’s negligence, you’ll need to consider comparative negligence or one of its common-law alternatives.

Then, keep an eye out for them.

MBE questions sometimes ask you directly if a particular defense applies. Others are more subtle, and if you aren’t already thinking about the specific defense the bar examiners have in mind, the language of the question might not clue you in. Check out this sample question, which sneaks in the relevant defense at the end of answer choice D. The stimulus focuses on a hijacking and the damage done to a passenger’s reputation when TV coverage reveals he was on the plane. The stem just asks whether the plaintiff will prevail on some unnamed tort claim against the TV stations—not whether the stations have a defense. You really have to be paying attention and thinking about newsworthiness as a defense to privacy torts for choice D to register as the right answer.

You’ll find tricks like this one all over the MBE’s torts questions, so be proactive about identifying potential defenses and thinking about how they apply to your fact patterns.

Be Ready for Weird Stuff.

The MBE loves to test obscure rules and outdated doctrines. Many of the torts questions raise rare defenses or delve into elements of a tort everyone usually takes for granted. You’ll see traditional common-law terms that you learned in class no longer apply in most jurisdictions. Don’t get mad. Be prepared. If you spend some time learning the fringes of the torts curriculum, it’s likely to make a difference in your score on test day. Here are some topics you’ll definitely want to master because they show up again and again.

Contributory negligence and last clear chance

You have to know the doctrine of contributory negligence and the “last clear chance” exception to it. Period.

Yes, you’re right: it’s ridiculous. Contributory negligence only applies in four states now, and only two of those four recognize last clear chance. But none of that matters. The bar examiners love these topics, even though you’re probably never going to see them play out in a real lawsuit. Within the microcosm of the MBE, you must understand these rules and be ready to apply them to a fact pattern. Past exams suggest that it’s highly likely at least one contributory negligence question will show up on your test.

Res ipsa loquitur

Res ipsa is another doctrine that rarely finds its way into courtrooms but often appears on the MBE. Here’s an example from the bar examiners. Be sure you know the elements of res ipsa: (1) a type of accident that usually doesn’t occur unless there’s negligence; and (2) control by the defendant over the object that caused the injury. And be ready to apply the res ipsa doctrine on the exam, if the fact pattern warrants it.

Cause-in-fact

Proximate causation seems like an obvious topic to master for the MBE (and you should do so!). It may be less intuitive, however, that you need to prepare for questions on cause-in-fact. But it’s true.

In most real-life cases, cause-in-fact is easy to prove, but on the MBE, it’s often the central issue. That means you need to learn the “even if” rule: the defendant’s negligence isn’t the “but-for” cause if the plaintiff would have suffered the same harm in its absence. You also need to learn the work-arounds for multiple tortfeasors and the concepts of joint and several liability. Most importantly, spot the issue. When you read a causation question on test day, don’t give in to the (very logical) impulse to assume the facts establish the cause-in-fact element.

Exceptions to the exceptions to the exceptions

In addition to knowing the elements of every tort and defense, you really need to memorize the exceptions to the rules. Even the rarest exception is fair game for the bar examiners, and they won’t hesitate to test it.

Here’s an example from strict liability. In this question, a man has four German shepherds that he’s trained for guard duty. The dogs hang out in a fenced yard with “beware of dogs” signs posted everywhere. The next-door neighbor knows the dogs are ferocious, but he enters the yard anyway and, predictably, gets bitten. The right answer to the question is choice A, which says the homeowner isn’t liable because the neighbor knew the dogs were dangerous.

To eliminate another tempting answer choice, however, you need to know what’s called the “trained to harm” exception. Choice B says the homeowner isn’t liable because the neighbor was trespassing, a reference to the general rule that homeowners aren’t liable to trespassers for dog bites. But the fact pattern tells you the man has been training his dogs “for guard duty.” Under the “trained to harm” exception, the homeowner can be liable if his guard dogs bite, even if the victim is a trespasser. Because of the exception, the neighbor’s status as a trespasser isn’t dispositive, and choice B is incorrect. If you know the general rule but don’t know the exception, you’re going to wind up guessing between A and B instead of confidently marking the right answer and moving on.

Proof Matters.

The MBE doesn’t just test you on the elements of a tort and its defenses; it also tests the kind of proof that’s necessary to satisfy those elements. At least a couple of tort questions on any given MBE come down to what the parties can prove. If you really want to ace this section, thinking about fact patterns in terms of proof will help you do so. Here are a couple of examples.

Res ipsa

To evaluate whether res ipsa applies to your question, ask yourself how much the plaintiff can prove about what caused the accident. Res ipsa is a sort of stand-in for facts, so the more the plaintiff knows about the who, what, where, and how, the less likely it is that res ipsa is the right answer.

Regular inspection

A woman comes across a puddle in the aisle of a grocery store. She slips and suffers an injury, and she decides to sue the store for negligently failing to clean up the puddle. In this scenario, which has appeared on prior MBEs, the case will turn on what exactly the plaintiff and defendant can prove about the circumstances surrounding the spill. Can the plaintiff show the puddle had been there long enough that the store should have been aware of the hazard? Can the defendant show that it regularly inspected the aisles every five minutes and therefore couldn’t have breached its duty of care? Both the negligence claim and the potential defense will stand or fall based on certain kinds of proof that you have to tease out from the fact pattern.

Training for Torts on the MBE

Now that you know what to study for torts, here’s how to do it: once you’ve reviewed the lectures and outlines at your disposal, take as many practice questions as you possibly can. To succeed on the torts section, you need to see lots of tort elements, defenses, and exceptions applied to a wide variety of fact patterns. You need to practice classifying torts, identifying defenses, and reasoning through issues like conduct, knowledge, and proof to get to the right answers. You need to witness all the weird doctrines in action so you can be ready to apply or reject them on test day. You need to see all the quirky ways the bar examiners like to phrase tort questions so they aren’t able to slip anything past you. Think of it as training your brain through smart, thoughtful repetition. Practice until you can’t imagine answering another tort question ever again. Then do a few more for good measure.