Torts on the Bar Exam: Negligence, Strict Liability, and the Rules That Decide Points

Torts is roughly 25 of the 175 scored MBE questions and a frequent MEE subject. It is also one of the most predictable: the same rules appear on nearly every administration of the exam.

The subject breaks into three main areas: intentional torts, negligence, and strict liability. Negligence dominates the question count.

Negligence: The Core of Torts on the MBE

Every negligence question tests the same four elements: duty, breach, causation, and damages. The MBE varies which element it is testing, and the answer choices are designed to punish candidates who skip an element or apply the wrong standard.

Duty

The general duty is to act as a reasonably prudent person under the circumstances. Special duty rules the MBE tests:

• Professionals: Held to the standard of a reasonably competent professional in the same field.
• Children: Held to the standard of a child of similar age, intelligence, and experience, unless engaged in an adult activity (then adult standard applies).
• Landowner/occupier duties: The traditional approach distinguishes between invitees (duty of reasonable care + duty to inspect), licensees (duty to warn of known dangers), and trespassers (duty to refrain from willful/wanton harm). Many jurisdictions have moved to a general reasonableness standard, but the MBE tests the traditional categories.
• No duty to rescue: There is generally no affirmative duty to rescue a stranger. Exceptions: special relationship (parent-child, employer-employee, carrier-passenger), voluntary assumption of duty (once you start rescuing, you must act reasonably), and statutory duty.
• Negligent infliction of emotional distress: Most jurisdictions require the plaintiff to be in the zone of danger or to witness injury to a close family member.

Breach

Breach is a question of fact: did the defendant's conduct fall below the applicable standard of care? The MBE tests two specific breach doctrines heavily:

Negligence per se: When the defendant violates a statute, the violation establishes duty and breach if: (1) the plaintiff is in the class of persons the statute was designed to protect, and (2) the harm is the type the statute was designed to prevent.

Res ipsa loquitur: The plaintiff can create an inference of negligence without proving the specific act if: (1) the accident is the type that normally does not occur without negligence, (2) the instrumentality was in the defendant's exclusive control, and (3) the plaintiff did not contribute to the injury.

Causation

Actual cause (but-for): But for the defendant's negligence, the plaintiff would not have been injured. When two independent causes each would have been sufficient, use the substantial factor test instead.

Proximate cause (legal cause): Was the harm within the foreseeable scope of the risk created by the defendant's negligence? The Palsgraf question. An unforeseeable plaintiff or an unforeseeable type of harm breaks the chain.

Superseding cause: An intervening force breaks the chain of proximate causation if it is unforeseeable. Foreseeable intervening causes (medical malpractice after an injury, rescue attempts, subsequent accidents at the scene) do not break the chain.

Damages

The plaintiff must prove actual damages (no nominal damages in negligence). Economic damages (medical bills, lost wages) plus non-economic damages (pain and suffering) are recoverable. Punitive damages require willful, wanton, or reckless conduct.

Eggshell plaintiff rule: The defendant takes the plaintiff as they find them. If the plaintiff has a pre-existing condition that makes the injury worse, the defendant is liable for the full extent of the harm.

Strict Liability

No fault required. The defendant is liable regardless of how careful they were.

Animals

• Wild animals: strict liability for any injury
• Domestic animals: strict liability only if the owner knows of the animal's dangerous propensity (the "one bite rule")

Abnormally Dangerous Activities

Apply the Restatement factors: high degree of risk, likelihood of great harm, inability to eliminate the risk with reasonable care, uncommon activity, inappropriate for the location, danger outweighs value to the community. Classic examples: blasting, storing large quantities of explosives, crop dusting.

Products Liability (Strict Liability)

A commercial seller is strictly liable for a defective product that causes injury. Three types of defects:

• Manufacturing defect: The product departs from its intended design.
• Design defect: The product's design is unreasonably dangerous. Tested under either the risk-utility test (majority) or the consumer expectations test.
• Warning defect (failure to warn): The product lacks adequate warnings about risks that are not obvious to the ordinary user.

The defendant must be a commercial seller in the chain of distribution. Casual sellers (selling your used car) are not strictly liable.

Intentional Torts: Quick Hits

The MBE tests these less heavily than negligence but they still appear:

• Battery: Intentional harmful or offensive contact with the plaintiff's person.
• Assault: Intentional act creating a reasonable apprehension of imminent harmful or offensive contact.
• False imprisonment: Intentional confinement within boundaries with no reasonable means of escape. The plaintiff must be aware of the confinement or harmed by it.
• IIED: Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress.
• Trespass to land: Intentional entry onto the plaintiff's land.
• Conversion: Intentional exercise of dominion over the plaintiff's chattel that seriously interferes with the owner's right of possession. Distinguished from trespass to chattels by the severity of the interference.

Defenses

Contributory negligence: In a pure contributory negligence jurisdiction, any negligence by the plaintiff bars recovery entirely. Most jurisdictions have moved to comparative fault, but the MBE may test both.

Comparative fault: Plaintiff's recovery is reduced by their percentage of fault. Pure comparative fault allows recovery even if the plaintiff is 99% at fault. Modified comparative fault bars recovery if the plaintiff is 50% or 51% at fault (depending on the jurisdiction).

Assumption of risk: If the plaintiff voluntarily assumed a known risk, they cannot recover. Must be knowing and voluntary.

Study Strategy for Torts

Negligence is the money topic. Drill proximate cause and negligence per se until you can identify them instantly in a fact pattern. For products liability, always classify the defect type first. For intentional torts, focus on the specific intent element, since the MBE tests transferred intent and the distinction between intent to act and intent to harm.