How to Approach an MEE Torts Question

Hi, everyone. We're going to talk about answering torts questions on the Multistate Essay Examination, or the MEE. First, in terms of frequency, torts tends to be tested about every year on the MEE. So you want to be familiar with the black-letter rules for torts, because you will likely see a torts essay question almost every year on the bar exam.

Now, the MEE is different than the type of doctrinal final essay exams that you completed during law school. The MEE questions, particularly torts MEE questions, tend to be quite focused and you don't have to write a lot to score well, that is, the focus on the MEE is not to show your reader every little thing that you might possibly know about the area of law, say, torts.

Rather, the focus on the MEE is to stay focused on answering the direct questions presented to you. I like to think of MEE

essays as mini oral arguments to a judge, where the judge asks you a direct question and you answer that direct question, often in a CRAC format: conclusion, rule, application, and conclusion.

Negligence

Common Topics

All right. Let's now talk about the commonly tested torts topics on the MEE. So, no big surprise here. The most commonly tested torts topics on the MEE is negligence. You absolutely want to spend some time getting comfortable with the rules related to negligence. As you know, the elements to negligence are duty, breach, causation, and physical damages.

We all have a duty to act reasonably to any foreseeable plaintiffs or potential victims of our negligent actions. We all have a duty to act as a reasonably prudent person would under the same or similar circumstances. If we fail to act reasonably, then we have breached our duty of care. And if this breach causes a plaintiff physical harm, then we are likely liable for negligence.

Now, remember that causation has two prongs in negligence: (1) actual or but-for cause and (2) proximate cause. Both need to be met in order for a defendant to be liable for negligence, and both need to be explained on your MEE answer.

A plaintiff satisfies the actual cause prong if she can show that she would not have been injured but for the defendant's actions. A plaintiff satisfies the proximate cause prong if she can show that whatever happened to her was a foreseeable result of the defendant's actions, even if there was an intervening cause between the defendant's actions and the plaintiff's harm. So, for actual cause, you are focused on the defendant's actions actually causing the plaintiff's harm, and for proximate cause, you are focused on foreseeability.

Premises Liability

Okay. One of the most common MEE torts issues tested within negligence is premises liability, where the defendant is a landowner and the plaintiff is suing the landowner for breaching some duty of care.

Remember that the duty of care a landowner owes to a plaintiff depends on the status of the plaintiff. If the plaintiff is an unknown trespasser, then the landowner owes no duty of care. However, if the plaintiff is a known trespasser, then the landowner owes a duty to warn the known trespasser of any unreasonably dangerous artificial conditions on the land.

If the plaintiff is a social guest on the landowner's property, or a licensee, then the landowner owes a duty to warn of any hidden dangers on the land. If the plaintiff is a business guest on the landowner's property, or an invitee, then the landowner has a duty to warn of, inspect, and make safe any dangers.

Duty of Care Owed By Child

Okay. Some other common MEE torts negligence issues relate to the duty of care owed by a child, that is, you might see a fact pattern where the plaintiff is injured by the actions of a child. Generally, a child has a duty to act as other children of the same age, maturity, and experience. But a child's duty of care changes when the child is engaged in an activity that is typically reserved to adults, like driving a motorcycle.

When a child is engaged in an adult activity, the child must act as a reasonably prudent adult would under the same or similar circumstances. So, basically, if you are a child and you are operating some motorcycle or car, you'd better operate that motorcycle or car like a reasonable, responsible adult.

Negligence-Related

All right. A few other common MEE torts negligence issues are what I call negligence-related issues, issues like negligence per se and res ipsa loquitur. Remember, in a negligence per se analysis, the plaintiff doesn't have to establish that the defendant breached a duty of care. Rather, there will be a statute or ordinance in the fact pattern that essentially serves as the standard of care.

But the plaintiff must do more than simply show that the defendant violated the statute or ordinance to successfully assert a negligence per se cause of action. The plaintiff still must show that she was a member of the class of persons that the statute was designed to protect, and that her injuries were the type of injuries that the statute was designed to prevent. Of course, the plaintiff must still establish causation and physical damages, so don't forget to talk about causation and physical damages in the negligence per se analysis.

In terms of res ipsa, the plaintiff will lack some evidence that directly establishes the defendant's negligence. So the plaintiff will try to get the court to infer that the defendant was negligent. The plaintiff can do so by proving (1) that the defendant was the last party who had exclusive control over the object that injured the plaintiff and ( 2) that the type of injury that the plaintiff sustained does not normally happen but for someone's negligence.

Beyond Negligence

Okay, let's quickly talk about some non-negligence issues commonly tested on the torts MEE questions. Make sure to review intentional torts, especially intentional infliction of emotional distress, or IIED. IIED can easily be tested as a short subpart to a torts MEE question. Remember that a plaintiff can succeed in an IIED claim if she can show that the defendant's intentional, extreme, and outrageous conduct caused the plaintiff severe emotional distress.

A defendant's conduct is extreme and outrageous when it exceeds or shocks the bounds of decency. Repeatedly targeting a plaintiff's weakness or known sensitivity satisfies the element, as well as targeting a plaintiff who may be a member of a fragile class, like children or the elderly.

Another non-negligence issue that tends to show up on torts MEE questions is strict liability, where a defendant is strictly liable, no matter how much care he may have taken with respect to his actions, and no matter whether he intended to cause any harm to the plaintiff. Strict liability applies to product defects, wild animals, and unreasonably dangerous activities like explosives and toxic chemicals.

All right. Let's quickly discuss a few more things before we end. For torts MEE questions, don't forget to review defenses like contributory or comparative negligence or assumption of risk. Defenses can easily be tested as a subpart to a torts essay question.

And don't forget to review vicarious liability and joint and several liability. They also can be easily tested as a subpart to a torts essay question. Remember, under vicarious liability, an employer can be held liable for the actions of an employee who injures a plaintiff while the employee is working under the course and scope of employment for the employer.

And under joint and several liability, several defendants cause a single accident to the plaintiff. In this situation, the defendants are considered jointly and severally liable to the plaintiff, and any one defendant can then be liable for all of the plaintiff's injuries.

Okay. So that's a quick intro to torts MEE issues.