Bar Exam MBE Torts Review

Torts is a heavily tested subject on the Multistate Bar Exam (MBE), often accounting for approximately 25 of the 175 scored questions. Success requires more than memorizing elements; it demands a disciplined analytical framework for dissecting complex fact patterns and avoiding the exam's strategically designed wrong answers. This review builds the foundational knowledge and exam-specific reasoning you need to approach any MBE torts question with confidence.

Core Concept 1: The Negligence Framework

Every negligence analysis follows a structured sequence: duty, breach, actual cause, proximate cause, and damages. Mastery of this sequence is non-negotiable. The duty of care is the obligation to conform to a standard of conduct to protect others against unreasonable risks. The general standard is the reasonable person under the same or similar circumstances. For certain defendants, like professionals, the standard becomes that of a reasonable member of that profession. Landowner duties vary based on the plaintiff’s status (trespasser, licensee, invitee), a frequent MBE testing point.

Breach is the failure to meet the applicable standard of care. Two important doctrines can help establish breach on the MBE. Negligence per se arises when a defendant violates a statute designed to protect a class of persons, including the plaintiff, from the type of harm that occurred. Res ipsa loquitur ("the thing speaks for itself") allows an inference of negligence when the event is of a type that ordinarily does not occur without negligence, the instrumentality was within the defendant’s exclusive control, and the plaintiff did not contribute to the injury.

Causation has two distinct parts. Actual cause (or "cause in fact") is typically established by the "but-for" test: but for the defendant’s breach, the plaintiff’s injury would not have occurred. In cases with multiple sufficient causes, courts may apply the "substantial factor" test. Proximate cause (or "legal cause") limits liability to those harms that are a foreseeable result of the defendant’s breach. The key inquiry is whether the type of harm suffered by the plaintiff was foreseeable, even if the exact manner was unusual (e.g., the "eggshell skull plaintiff" rule).

Core Concept 2: Intentional Torts, Defamation, and Privacy

Intentional torts require a deliberate act with intent to bring about a specific consequence. Battery is an intentional, harmful or offensive contact with the plaintiff’s person. Assault is intentional conduct causing a reasonable apprehension of an imminent battery. False imprisonment is the intentional confinement of another within fixed boundaries. Intentional infliction of emotional distress (IIED) requires outrageous and extreme conduct causing severe emotional distress. Key defenses include consent and self-defense (which must be proportional).

Defamation protects against harm to reputation. A prima facie case requires (1) a false and defamatory statement of fact, (2) publication to a third party, (3) fault (negligence for private figures; actual malice for public figures/officials regarding public concern), and (4) damages. Libel is written; slander is spoken, typically requiring special damages unless it falls into a slander per se category (e.g., accusing someone of a crime, having a loathsome disease, etc.). Key defenses include truth and, for matters of public concern, the privilege of fair comment.

Privacy torts are often tested in tandem. They include: Intrusion upon seclusion (offensive intrusion into private affairs); Public disclosure of private facts (publicizing highly offensive private information not of public concern); False light (publicizing false information that would be highly offensive to a reasonable person); and Appropriation (using another’s name or likeness for commercial benefit without consent).

Economic torts protect against intentional interference with business relationships. Key torts include intentional interference with contract, which requires knowledge of a contract, intentional acts to disrupt it, and resulting damage, and intentional interference with prospective economic advantage, which involves similar elements but for anticipated business relations without a formal contract.

Core Concept 3: Strict and Products Liability

Strict liability applies without regard to fault in three primary MBE areas: (1) abnormally dangerous activities (e.g., blasting, storing explosives), (2) trespassing livestock, and (3) wild animals kept in captivity. The policy rationale is to place the loss on the party who introduced a major, unavoidable risk into the community.

Products liability is a major and nuanced MBE topic with three primary theories. Negligence focuses on the manufacturer’s or seller’s failure to exercise reasonable care in production or inspection. Strict products liability applies to commercial sellers for defective products that are unreasonably dangerous. Defects are categorized as: manufacturing (product departs from its intended design), design (all products of this line are inherently dangerous), or warning (inadequate instructions or failure to warn of non-obvious risks). Breach of warranty involves violations of express promises or the implied warranties of merchantability and fitness for a particular purpose. Defenses, including comparative fault and assumption of risk, are critically important to analyze.

Core Concept 4: Damages, Joint Liability, and Defenses

The MBE tests your understanding of how damages are calculated and allocated. Compensatory damages aim to make the plaintiff whole, covering economic (medical bills, lost wages) and non-economic (pain and suffering) losses. Punitive damages are meant to punish egregious conduct and deter future misconduct, typically requiring a showing of malice, fraud, or recklessness.

In cases with multiple tortfeasors, understand joint and several liability. Under traditional rules, each defendant responsible for an indivisible injury could be held liable for the entire judgment. The MBE often tests modern modifications, such as several-only liability for non-economic damages or reallocation of an insolvent defendant’s share. Vicarious liability, like an employer’s liability for an employee’s torts committed within the scope of employment, is a common vehicle for these questions.

Defenses can completely bar or reduce recovery. Contributory negligence, a complete bar in pure form, is rare. Most jurisdictions use comparative fault, which reduces plaintiff’s recovery by their percentage of responsibility. Know the difference between pure comparative fault (plaintiff recovers even if 99% at fault) and modified (plaintiff barred at 50% or 51%). Assumption of risk can be express (by contract) or implied (by voluntary encounter with a known risk). It is a complete defense in some jurisdictions, while others treat it as a form of comparative fault.

Common Pitfalls

1. Confusing Negligence Per Se with Res Ipsa Loquitur: Both relate to breach, but they function differently. Negligence per se substitutes statutory violation for breach if the statute is designed to prevent the plaintiff’s type of harm. Res ipsa permits an inference of negligence from the circumstances when direct evidence of breach is lacking. On the MBE, carefully check if a statute is involved.
2. Mishandling Proximate Cause: The biggest trap is overthinking. If the plaintiff’s injury is a foreseeable type of harm resulting from the defendant’s breach, proximate cause is typically satisfied—even if the exact sequence of events was bizarre. Do not confuse the "eggshell skull" rule (defendant takes plaintiff as found) with an unforeseeable type of injury.
3. Misapplying Products Liability Theories: Do not immediately jump to strict liability. Always check the defendant. Strict products liability applies only to commercial sellers. If the defendant is a casual seller or a service provider (like a restaurant), negligence is the likely theory. Furthermore, always categorize the alleged defect: manufacturing, design, or warning.
4. Forgetting to Apply Defenses: After analyzing a prima facie case, always ask, "What defenses apply?" Especially in negligence, comparative fault is a favorite MBE wrinkle. If the plaintiff was also careless, their recovery will be reduced. Failing to apply this final step can lead you to an incorrect, overly plaintiff-friendly answer.

Summary

• Negligence is a sequential analysis: Systematically walk through duty, breach, causation (actual and proximate), and damages for every negligence question.
• Intent requires a purposeful act or substantial certainty: For intentional torts, the defendant must intend the consequences of their act, not just the act itself.
• Strict liability applies without fault for abnormally dangerous activities, wild animals, and products liability (for commercial sellers).
• Products liability has three main theories: Negligence, strict liability, and breach of warranty. Identify the defendant and the nature of the defect to select the correct framework.
• Defenses are decisive: Always evaluate comparative fault, assumption of risk, and privileges (e.g., for defamation) at the end of your analysis, as they can bar or significantly reduce recovery.
• MBE questions test application, not just recall: Use the facts provided. The correct answer will be the one that most precisely applies the governing legal rule to the specific scenario in the call of the question.