MBE WORKSHOP: TORTS PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW

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1 CHAPTER 1: TORTS MBE WORKSHOP: TORTS PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW Editor's Note 1: The below outline is taken from the National Conference of Bar Examiners' website. NOTE: The Torts questions should be answered according to principles of general applicability. Examinees are to assume that there is no applicable statute unless otherwise specified; however, survival actions and claims for wrongful death should be assumed to be available where applicable. Examinees should assume that joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated. Approximately half of the Torts questions on the MBE will be based on category II, and approximately half will be based on the remaining categories I, III, and IV. I. INTENTIONAL TORTS A. Harms to the person, such as assault, battery, false imprisonment, and infliction of mental distress; and harms to property interests, such as trespass to land and chattels, and conversion B. Defenses to claims for physical harms 1. Consent 2. Privileges and immunities: protection of self and others; protection of property interests; parental discipline; protection of public interests; necessity; incomplete privilege II. NEGLIGENCE A. The duty question, including failure to act, unforeseeable plaintiffs, and obligations to control the conduct of third parties B. The standard of care 1. The reasonably prudent person: including children, physically and mentally impaired individuals, professional people, and other special classes 2. Rules of conduct derived from statutes and custom C. Problems relating to proof of fault, including res ipsa loquitur D. Problems relating to causation 1. But for and substantial causes 2. Harms traceable to multiple causes 3. Questions of apportionment of responsibility among multiple tortfeasors, joint and several liability E. Limitations on liability and special rules of liability 1. Remote or unforeseeable causes, legal or proximate cause, and superseding causes 2. Claims against owners and occupiers of land 3. Claims for mental distress not arising from physical harm; other intangible injuries 4. Claims for pure economic loss F. Liability for acts of others 1. Employees and other agents 2. Independent contractors and nondelegable duties G. Defenses 1. Contributory fault, including common law contributory negligence and last clear chance, and the various forms of comparative

2 negligence 2. Assumption of risk III. STRICT LIABILITY AND PRODUCTS LIABILITY: common law strict liability, including claims arising from abnormally dangerous activities, and defenses to such claims; claims against manufacturers and other defendants arising out of the manufacture and distribution of products, and defenses to such claims IV. OTHER TORTS A. Claims based on nuisance, and defenses B. Claims based on defamation and invasion of privacy, defenses, and constitutional limitations C. Claims based on misrepresentations, and defenses D. Claims based on intentional interference with business relations, and defenses TOP FIVE THINGS TO KNOW FOR TORTS 1. Focus on negligence. About ½ of the questions will touch on this topic. 2. Do the math! 3. A correct answer to a negligence question will almost always include the word reasonable or foreseeable often both! 4. Know the elements cold! Most questions revolve around the elements of the cause of action. 5. Use the answer choices to help you figure out which torts are in play Themis Bar Review, LLC MBE Workshop: Torts

3 CHAPTER 2: TORTS - PRACTICE QUESTIONS Tip #1: Focus on negligence. About one half of the questions will touch on this topic. The plaintiff and his friend were walking on a city sidewalk. The friend jokingly pushed the plaintiff after the plaintiff started making fun of the friend's taste in music. This caused the plaintiff to trip over his own feet and stumble into the bike lane of the street. The defendant driver, who was involved in a heated argument on his cell phone, had veered into the bike lane and did not see the plaintiff. He hit the plaintiff, causing the plaintiff numerous injuries. The plaintiff has sued the driver. The evidence at trial shows that the plaintiff's injuries were caused by the negligence of both the friend and the defendant. The state has adopted a system of pure several liability. Is the plaintiff likely to prevail in a negligence claim against the defendant? A. No, because the plaintiff's injuries were caused by multiple tortfeasors. B. No, because the state does not recognize joint and several liability. C. Yes, because the defendant and the friend were independent tortfeasors. D. Yes, because the defendant's conduct was the actual cause of the plaintiff's injury. Answer choice D is correct. In order to prove negligence, the plaintiff must establish that the defendant's actions were both the actual cause and the proximate cause of the plaintiff's injury. Generally, the plaintiff must show that his injury would not have occurred but for the defendant's conduct. When multiple defendants have contributed to the plaintiff's injury, the plaintiff may establish causation by showing that the defendant's conduct was a substantial factor in causing the plaintiff's injury. In this case, the defendant and the friend were both the actual causes of the plaintiff's injury, and the plaintiff could recover against either or both of them. Answer choice A is incorrect because a plaintiff may recover against a single tortfeasor when his injuries were caused by multiple tortfeasors so long as the plaintiff can show that the defendant's conduct was the "but for" cause or a substantial factor in causing the injuries. Answer choice B is incorrect because, under joint and several liability, when two or more persons are responsible for a plaintiff's harm, the plaintiff may sue any one of them and obtain a full judgment. Under a system of pure several liability, a tortfeasor is generally only liable for his comparative share of the plaintiff's damages. In this case, the plaintiff could likely collect only a share of the full damages from the defendant. This does not, however, prevent the plaintiff from successfully pursuing a negligence action against the defendant alone. Answer choice C is incorrect because when more than one individual is the cause of a plaintiff's harm, the plaintiff may choose to sue only one defendant regardless of whether the defendants acted in concert with one another or were independent tortfeasors. Editor's Note 1: The Professor misspoke when discussing pure several liability. Under pure several liability, a tortfeasor is generally only liable for his comparative share of the plaintiff s damages. Note that this distinction does not impact the correct answer choice. MBE Workshop: Torts 2016 Themis Bar Review, LLC 3

4 Tip #2: Do the math! A skier took his skis to a ski shop to have the bindings tuned ahead of an upcoming ski vacation. Unbeknownst to the skier, the shop tuned only his right ski. On the first day of his vacation, the skier fell and broke his left leg after being hit by a snowboarder. It was later determined that the left binding was rusted, and that his injuries would have been less severe if the binding had been intact. The skier has sued the ski shop and the snowboarder. The jury has awarded damages of $100,000, and determined that the skier was 20% at fault, the ski shop was 20% at fault, and the snowboarder was 60% at fault. The jurisdiction recognizes pure comparative negligence and joint and several liability. How much can the skier collect from the ski shop? A. $20, B. $80, C. $100, D. The skier cannot collect anything from the ski shop. [Answer explanation on next page] Themis Bar Review, LLC MBE Workshop: Torts

5 CHAPTER 3: TORTS - PRACTICE QUESTIONS Tip #2 Answer Explanation Answer choice B is correct. Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. Thus, a plaintiff can collect the full damages to which he is entitled from any of the defendants. Under a system of pure comparative negligence, a plaintiff's damages are reduced by the proportion that his fault bears to the total harm. In this case, the plaintiff would be entitled to $80,000 in damages because his total damages would be reduced by 20%, or the proportion of his fault. He could collect this entire amount from the ski shop. Answer choice A is incorrect because it ignores the effect of joint and several liability. The skier is entitled to $80,000 in total damages, and he could collect this entire amount from the ski shop. Answer choice C is incorrect because the skier cannot collect the $20,000 in damages attributable to his own negligence. Answer choice D is incorrect because it ignores the effect of the comparative negligence doctrine. At common law, the theory of contributory negligence barred a plaintiff from recovery when his own negligence contributed to his injury. Under the theory of comparative negligence, however, a plaintiff's own negligence is not a complete bar to recovery. MBE Workshop: Torts 2016 Themis Bar Review, LLC 5

6 Tip #3: A correct answer to a negligence question will almost always include the word reasonable or foreseeable often both! A woman told her friend that she believed she had a peanut allergy, although it had not been diagnosed. In an attempt to prove her long-held theory that peanut allergies do not really exist, the friend decided to surreptitiously give the woman some peanuts. The friend invited the woman over for lunch, assuring her that the lunch was peanut-free. In fact, the friend had substituted peanuts for pine nuts in the pesto on their sandwiches. After they finished eating, the friend began to feel guilty and admitted to her plan. When the woman saw hives forming on her arm, she decided to go to the doctor. The doctor told the woman that the hives were likely due to anxiety, but that he would provide an ointment. Due to a mix- up, the doctor ordered the nurse to provide the woman with an antibiotic to which the woman was allergic. The woman suffered a severe reaction to the antibiotic. The woman has sued her friend and her doctor for negligence. The friend has filed a motion to dismiss the claims against her. Is the friend likely to succeed in having the claims against her dismissed? A. No, because the doctor's error and the resulting harm were foreseeable. B. No, because the friend's actions were the direct cause of the woman's injuries. C. Yes, because the doctor's error was the direct cause of the woman's injuries. D. Yes, because the doctor's error was a superseding cause of the woman's injuries. Answer choice A is correct. To succeed on a negligence claim, the plaintiff must prove proximate causation. Proximate cause exists when the defendant's actions are a direct cause of the plaintiff's injuries. Or, if an intervening force occurs between the defendant's act and the plaintiff's injury, the defendant still may be liable if the intervening force was foreseeable. Medical malpractice is a foreseeable intervening force. In this case, the doctor's error was foreseeable after the friend intentionally gave the woman a food to which she may have been allergic. Accordingly, the friend was the proximate cause of the woman's injuries. Answer choice B is incorrect because the doctor's negligence in providing the woman with the wrong medication was the direct cause of the woman's injuries. Answer choice C is incorrect because, although the doctor's error was the direct cause of the woman's injuries, the doctor's actions were a foreseeable intervening force. Accordingly, the friend is unlikely to succeed in having the claims dismissed. Answer choice D is incorrect because the doctor's actions were not a superseding cause of the woman's injuries. When an intervening cause is unforeseeable, it may become a superseding cause and cut off the defendant's liability. Medical malpractice is foreseeable, however. Thus, the doctor's actions were not a superseding cause Themis Bar Review, LLC MBE Workshop: Torts

7 Tip #4: Know the elements cold! Most questions revolve around the elements of the cause of action. Two high school students, dressed as robbers for Halloween, were playing tag and chasing each other in the street outside of their dormitory. One of the students hid behind a shrub and waited to surprise the other. Before the other student appeared, an elderly woman passed the shrub. The student, hearing footsteps and thinking it was the other student, jumped in front of her and shouted, "Got you!" Before the student could touch her, the elderly woman shrieked and jumped backward. She dropped a bag of groceries but was otherwise unharmed. The woman sued the student for assault. Will the woman prevail in her suit against the student? A. Yes, because the woman was placed in reasonable apprehension of imminent battery. B. Yes, because the student's words, coupled with the act of jumping from the shrub, constituted an overt act. C. No, because the woman sustained no damages for which she could collect. D. No, because the student did not have the necessary intent to commit a tort. [Answer explanation on next page] MBE Workshop: Torts 2016 Themis Bar Review, LLC 7

8 CHAPTER 4: TORTS - PRACTICE QUESTIONS Tip # 4 Answer Explanation Answer choice D is correct. An assault occurs when the defendant's intentional overt act causes the plaintiff to experience reasonable apprehension of an imminent battery. The act must be volitional and performed with intent to place someone in apprehension of imminent harm or offensive contact. The doctrine of transferred intent applies to the tort of assault. Here, although the student startled the woman, who was reasonably frightened by the student's actions, the student lacked tortious intent. Had the student intended to assault or commit battery against another person, the doctrine of transferred intent would have applied, but the facts do not suggest that the student had any intent to commit any sort of tort, and was merely playing a game of tag with a friend. Answer choice A is incorrect because, although the woman was placed in reasonable apprehension, this element alone does not suffice to prove an assault. Answer choice B is incorrect because, while an overt act is one of the elements of the tort of assault, it requires an intent to place someone in imminent apprehension of a battery, which is not present here. Answer choice C is incorrect because no proof of harm is required; the plaintiff may recover nominal damages even though no actual damage occurred Themis Bar Review, LLC MBE Workshop: Torts

9 Tip #5: Use the answer choices to help you figure out which torts are in play. Two high school students, dressed as robbers for Halloween, were playing tag and chasing each other in the street outside of their dormitory. They decided it would be fun to scare passersby. They hid behind a shrub and peeked out, waiting for someone to pass. When an elderly woman passed the shrub, one student jumped in front of her and shouted, "Hands up!" Before the student could touch her, the elderly woman shrieked and jumped backward. She dropped a bag of groceries but was otherwise unharmed. Under what tort theory is the woman most likely to prevail? A. Negligent infliction of emotional distress. B. Intentional infliction of emotional distress. C. Battery. D. Assault. Answer choice D is correct. An assault occurs when the defendant's intentional overt act causes the plaintiff to experience reasonable apprehension of an imminent battery. The act must be volitional and performed with intent to place someone in apprehension of imminent harm or offensive contact. Here, although the student (dressed like a robber and shouting something that sounded like a robbery) startled the woman, who was reasonably frightened by the student's actions. Answer choice A is incorrect because the facts say that the woman was unharmed. Negligent infliction of emotional distress requires physical harm. Answer choice B is incorrect because, while scaring someone is offensive, it probably does not rise to the level of extreme and outrageous, particularly on Halloween. Answer choice C is incorrect because the facts indicate that the student did not touch the woman. Battery requires an offensive touching. MBE Workshop: Torts 2016 Themis Bar Review, LLC 9

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