Torts MBE Prep
Torts on the MBE covers intentional torts, negligence, strict liability, and products liability. Negligence dominates the exam, typically representing more than half of the Torts questions. Within negligence, duty, breach, causation (both actual and proximate), and damages are all heavily tested. You must be comfortable applying the reasonable person standard and understanding when a heightened or diminished duty applies.
Intentional torts (battery, assault, false imprisonment, IIED, trespass, conversion) appear with moderate frequency. The key to intentional tort questions is identifying the required intent element: for most torts, the defendant must intend the act, not necessarily the harm. The doctrine of transferred intent applies across five torts.
Strict liability and products liability questions require you to distinguish between manufacturing defects, design defects, and failure-to-warn claims. Comparative negligence, assumption of risk, and the interplay between strict liability and negligence defenses are common areas of confusion that the MBE exploits.
High-Yield Topics
| Topic | Frequency | Tips |
|---|---|---|
| Negligence: Duty, Breach, Causation, Damages | Very High | The general duty of care is the reasonable person standard. Special duties apply to common carriers (highest care), innkeepers, professionals (standard of the profession), and landowners (varying by entrant status). Breach is analyzed using the Hand formula: B < P x L (burden of precaution vs. probability and magnitude of harm). Always analyze both actual cause (but-for) and proximate cause (foreseeability). |
| Proximate Cause and Foreseeability | Very High | Proximate cause limits liability to foreseeable consequences. An intervening force breaks the chain of causation only if it is unforeseeable (superseding cause). Foreseeable intervening forces (negligence of third parties, medical malpractice, subsequent accidents) do not break the chain. The eggshell skull rule: you take the plaintiff as you find them. The type of harm must be foreseeable, but its extent need not be. |
| Products Liability | Very High | Three theories: strict liability, negligence, and warranty. For strict liability, the product must have a defect (manufacturing, design, or warning) that made it unreasonably dangerous, and the defect must have existed when it left the defendant's control. Design defect tests: consumer expectation test vs. risk-utility test. Failure to warn: the manufacturer must warn of known dangers that are not obvious. |
| Comparative and Contributory Negligence | High | Most jurisdictions use comparative negligence. Pure comparative: plaintiff recovers regardless of fault percentage. Modified: plaintiff is barred if 50% or 51% at fault (varies by jurisdiction). The MBE generally tests pure comparative negligence. Contributory negligence is a complete bar in a few jurisdictions. Know both rules. |
| Intentional Torts and Defenses | High | For battery, the intent is to cause a harmful or offensive contact, not to cause injury. Assault requires apprehension (not fear) of imminent harmful or offensive contact. False imprisonment requires confinement with the plaintiff's awareness (or harm). Know the defenses: consent (express and implied), self-defense (reasonable force), defense of others, defense of property (never deadly force), and necessity (public vs. private). |
| Strict Liability for Abnormally Dangerous Activities | Moderate-High | Under the Restatement factors, consider: high risk of harm, inability to eliminate the risk with due care, uncommonness of the activity, inappropriateness for the location, and the value to the community vs. the risk. Common examples: blasting, storing large quantities of explosives or toxic chemicals. Contributory negligence is NOT a defense, but assumption of risk is. |
| Vicarious Liability and Respondeat Superior | Moderate-High | An employer is liable for torts committed by employees within the scope of employment. Independent contractors generally do not create vicarious liability unless the activity is non-delegable or inherently dangerous. Frolic vs. detour: a minor deviation (detour) stays within scope; a major departure (frolic) does not. |
| Defamation | Moderate | Distinguish libel (written) from slander (spoken). Libel is actionable per se. Slander requires special damages unless it falls into slander per se categories: business/profession, loathsome disease, serious crime, or sexual misconduct. Public figures must prove actual malice (NY Times v. Sullivan). Private figures need only prove negligence regarding falsity. |
| Negligent and Intentional Infliction of Emotional Distress | Moderate | IIED requires extreme and outrageous conduct, intent or recklessness, causation, and severe emotional distress. NIED requires the plaintiff to be in the zone of danger or, under the Dillon/Thing test for bystanders: closely related to the victim, present at the scene, and contemporaneously perceived the injury-causing event. |
| Premises Liability | Moderate | Traditional approach: different duties owed to invitees (reasonable care + duty to inspect), licensees (warn of known dangers), and trespassers (no willful or wanton harm). Modern trend: reasonable care under the circumstances for all entrants. Know the attractive nuisance doctrine for child trespassers. |
Common MBE Traps
Confusing actual cause with proximate cause
Actual cause (but-for causation or substantial factor) is a factual inquiry. Proximate cause is a policy-based limit on liability based on foreseeability. Both must be satisfied for the defendant to be liable. Many MBE questions present situations where but-for causation exists but the harm is too remote to satisfy proximate cause.
Applying contributory negligence to strict liability claims
Ordinary contributory negligence (failure to discover a defect or guard against its existence) is NOT a defense to strict liability. However, assumption of risk and misuse of the product ARE defenses. If the plaintiff knew of the defect and voluntarily encountered the risk, that can reduce or bar recovery under comparative fault principles.
Forgetting the eggshell skull rule
The defendant takes the plaintiff as they find them. If a plaintiff has a preexisting condition that makes an injury worse than expected, the defendant is liable for the full extent of the harm. This applies even though the type of harm was foreseeable but the severity was not. Do not reduce damages because a normal person would have been less injured.
Choosing negligence per se when the statute does not apply
Negligence per se requires that (1) the defendant violated a statute, (2) the plaintiff is within the class of persons the statute was designed to protect, and (3) the harm is the type the statute was designed to prevent. If the plaintiff is not within the protected class or the harm is not the type contemplated, negligence per se does not apply.
Selecting the wrong intentional tort
Battery requires contact; assault requires apprehension of imminent contact. False imprisonment requires confinement; IIED requires extreme and outrageous conduct. The MBE includes answer choices that name the wrong intentional tort. Read the elements carefully and match them to the facts before selecting.
Assuming a duty to rescue exists
There is generally no duty to rescue a stranger. Exceptions exist for special relationships (parent-child, employer-employee, common carrier-passenger, innkeeper-guest), voluntary assumption of duty, and creation of the peril. If the question does not present a special relationship or exception, the defendant has no duty to act.
Study Strategy
Negligence is the most heavily tested topic, so it should receive the most study time. Build a systematic approach: duty (does a duty exist and what is its scope?), breach (did the defendant fall below the standard of care?), actual cause (but-for or substantial factor), proximate cause (foreseeable type of harm?), and damages (actual harm suffered). Work through each element in order for every question.
For products liability, make a chart comparing the three theories (strict liability, negligence, warranty) across the three defect types (manufacturing, design, failure to warn). Know which defenses apply to each theory.
Intentional torts are more straightforward but require precise knowledge of the elements. Flashcard the elements of each tort and its available defenses. The MBE loves to test transferred intent: remember that it applies among battery, assault, false imprisonment, trespass to land, and trespass to chattels.
Mnemonics & Memory Aids
Negligence Elements
DBCD: Duty, Breach, Causation (actual + proximate), Damages.
Transferred Intent Torts
BAT-TT: Battery, Assault, Trespass to land, Trespass to chattels (and False imprisonment).
IIED Elements
EOCS: Extreme and Outrageous conduct, Causation, Severe emotional distress.
Slander Per Se Categories
BLCD: Business or profession, Loathsome disease, Crime of moral turpitude, (un)chastity/sexual misconduct.
Products Liability Defect Types
MaDW: Manufacturing defect, Design defect, Warning defect (failure to warn).
Time Management Tips
- For negligence questions, read the call of the question first to identify which element is being tested. If the question asks about liability, check each element. If it asks about a specific defense, focus there.
- Products liability fact patterns can be long. Identify the type of defect (manufacturing, design, or warning) early and apply the corresponding test.
- On comparative fault questions, calculate the percentages carefully. The math is simple, but careless errors under time pressure are common.
- Intentional tort questions are often shorter and more straightforward than negligence questions. Use these as opportunities to bank time for harder questions.
Related Legal Rules
A defendant owes a duty of care to act as a reasonable person would to avoid foreseeable risks of harm to others. This threshold element must be established before any negligence claim can proceed.
The objective standard by which a defendant's conduct is measured in negligence cases. A person must act as a reasonably prudent person would under the same or similar circumstances.
Proximate cause limits liability to consequences that are a foreseeable result of the defendant's negligent conduct. It serves as a policy-based limitation on the scope of liability beyond actual causation.
The plaintiff must prove that but for the defendant's negligent conduct, the injury would not have occurred. This actual cause requirement is a necessary element of every negligence claim.
When two or more defendants are jointly liable, each can be held responsible for the full amount of the plaintiff's damages. The plaintiff may collect the entire judgment from any single defendant.
A system that apportions fault between plaintiff and defendant, reducing the plaintiff's recovery by their percentage of fault rather than completely barring the claim as under contributory negligence.
A common law defense that completely bars a plaintiff's recovery if the plaintiff's own negligence contributed in any degree to the injury. Only a handful of US jurisdictions still follow this rule.
A defense where the plaintiff voluntarily and knowingly encountered a known risk, potentially barring or reducing recovery. It can be express (by agreement) or implied (by conduct).
A landowner may owe a duty of care to trespassing children if the landowner maintains a condition on the property that is likely to attract children who cannot appreciate the danger it poses.
A cause of action for emotional distress caused by the defendant's negligence, typically requiring physical manifestation of the distress or that the plaintiff was in the zone of danger or witnessed harm to a close relative.
A tort claim for severe emotional distress caused by the defendant's extreme and outrageous conduct, committed intentionally or with reckless disregard. No physical contact is required.
A defendant who engages in abnormally dangerous activities is liable for resulting harm regardless of fault. Neither negligence nor intent must be proven — the activity itself imposes liability.
Manufacturers and sellers of defective products are strictly liable for injuries caused by those products, regardless of fault. The plaintiff need not prove negligence, only that the product was defective and caused harm.
A manufacturer or seller who fails to exercise reasonable care in designing, manufacturing, or warning about a product can be held liable in negligence for injuries caused by that failure.
A buyer may sue under warranty theory when a product fails to meet express or implied promises about its quality or fitness, governed primarily by the Uniform Commercial Code rather than tort law.
An employer or principal is liable for the torts of an employee or agent committed within the scope of employment, even if the employer was not personally at fault. This is the doctrine of respondeat superior.
A landowner's duty of care to persons on their property depends on the entrant's status as an invitee, licensee, or trespasser. Some jurisdictions have replaced this framework with a general duty of reasonable care.
Under the common law, there is generally no affirmative duty to rescue a stranger in peril, even if rescue would be easy and costless. Exceptions exist for special relationships and for those who create the peril.
Defamation is the publication of a false statement of fact to a third party that damages the plaintiff's reputation. Libel is written defamation; slander is spoken. Different rules apply to public and private figures.
Public officials and public figures must prove actual malice — knowledge of falsity or reckless disregard for truth — to recover in defamation. This heightened standard protects First Amendment free speech values.
The economic loss rule bars tort recovery for purely economic losses (lost profits, diminished value) absent physical injury to person or property. Such losses must be pursued through contract or warranty law.
A derivative claim by a spouse (and in some jurisdictions a parent or child) for the loss of companionship, affection, sexual relations, and services resulting from tortious injury to a family member.
A statutory cause of action brought by surviving family members to recover damages for losses suffered due to the decedent's death caused by another's wrongful act, neglect, or default.