Multistate Bar Examination (MBE) Torts Syllabus

What duty, if any, does a person owe to act affirmatively to aid another, and what are the exceptions?

General rule: no duty to act affirmatively to rescue or aid. Exceptions creating a duty: (1) a special relationship (parent-child, common carrier-passenger, etc.); (2) the defendant caused the peril; (3) the defendant undertook to rescue (must act reasonably); or (4) a statute/contract imposes a duty. Good Samaritan statutes shield gratuitous rescuers from ordinary negligence.

What is the Hand Formula for determining breach of duty?

Breach exists when the burden of taking adequate precautions (B) is less than the probability of harm (P) multiplied by the gravity/magnitude of the loss (L): liability when B < P × L (United States v. Carroll Towing). It frames breach as an economic cost-benefit balance.

What are the elements/requirements for res ipsa loquitur?

Res ipsa allows an inference of breach when: (1) the accident is of a type that does not ordinarily occur absent negligence, and (2) the instrumentality was in the exclusive control of the defendant (or negligence is attributable to the defendant) — and (3) the injury was not due to the plaintiff. Its effect is to get the plaintiff past a directed verdict (creates an inference, not a presumption).

What is the test for actual cause (cause-in-fact), and what test applies when multiple causes combine?

The default test is 'but-for' causation: but for the defendant's act, the harm would not have occurred. When multiple sufficient causes combine (e.g., two fires), courts use the 'substantial factor' test — each defendant whose conduct was a substantial factor is liable. With multiple defendants and an unidentifiable cause, the burden may shift to defendants (alternative liability — Summers v. Tice).

What is proximate (legal) cause, and how are intervening/superseding causes treated?

Proximate cause limits liability to foreseeable harms. A defendant is liable for harms within the foreseeable risk created. Foreseeable intervening causes (e.g., ordinary negligence of rescuers, subsequent medical malpractice, normal rescue) do not cut off liability. Unforeseeable intervening causes (e.g., extraordinary acts of nature, intentional crimes) are 'superseding' and break the causal chain.

What is the 'eggshell skull' (thin-skull) rule?

The defendant takes the plaintiff as he finds him. Once a defendant is liable for any foreseeable harm, he is liable for the full extent of the plaintiff's injuries, even if they are far more severe than expected due to the plaintiff's pre-existing condition or special sensitivity. The extent of damages need not be foreseeable.

What categories of damages are recoverable in a negligence action, and is the duty to mitigate required?

Recoverable compensatory damages: past and future medical expenses, lost earnings/earning capacity, and pain and suffering. Punitive damages require wanton/willful or malicious conduct. The plaintiff has a duty to mitigate (e.g., seek treatment). Nominal damages are NOT available in negligence (actual harm is an element). The collateral source rule generally bars reducing damages by benefits from independent sources.

Compare contributory negligence, pure comparative negligence, and modified comparative negligence.

Contributory negligence (minority): any negligence by the plaintiff is a complete bar to recovery (mitigated by last clear chance). Pure comparative: plaintiff's recovery is reduced by her percentage of fault, even if she is 99% at fault. Modified comparative (most states): plaintiff recovers reduced damages only if her fault is below 50% (or not greater than 50%); otherwise barred.

What is the 'last clear chance' doctrine?

A plaintiff's rebuttal to a contributory negligence defense: the defendant who had the last clear chance to avoid the accident but failed to do so is liable despite the plaintiff's contributory negligence. It is the 'plaintiff's rebuttal' and applies only in contributory negligence jurisdictions.

How does assumption of the risk operate as a defense, and what are its two forms?

The plaintiff is denied recovery if she (1) knew of the risk and (2) voluntarily assumed it. Express assumption is by agreement/waiver (may be void if against public policy). Implied assumption is shown by conduct. In comparative-fault jurisdictions, implied assumption of risk is often merged into the comparative-fault analysis rather than being a complete bar.

For what three categories of activity does strict liability apply?

(1) Abnormally dangerous (ultrahazardous) activities; (2) keeping of wild animals (and abnormally dangerous domestic animals where the owner knows of the dangerous propensity); and (3) products liability based on a manufacturing/design/warning defect (under strict products liability theory).

What factors make an activity 'abnormally dangerous' for strict liability?

Key factors: (1) the activity creates a foreseeable risk of serious harm even when reasonable care is exercised, and (2) the activity is not a matter of common usage in the community. Examples: blasting/explosives, toxic chemicals, radioactive materials. Liability is limited to harms flowing from the 'normally dangerous propensity' of the activity.

What is the strict liability rule for injuries caused by animals (wild vs. domestic)?

Wild animals: owner is strictly liable for harm caused by the animal's dangerous propensities, even if domesticated. Domestic animals: owner is liable only if she knows or has reason to know of the animal's dangerous propensities (the 'one-bite' notion). Trespassing cattle/livestock: strict liability for property damage. Strict liability does not extend to trespassers (except where a vicious watchdog is kept).

What are the five theories under which a products liability claim can be brought?

(1) Intent (battery), (2) Negligence, (3) Strict products liability, (4) Implied warranties of merchantability and fitness for a particular purpose, and (5) Express warranty / misrepresentation. Strict products liability and negligence are the most heavily tested on the MBE.

What are the elements of a strict products liability claim?

(1) The defendant is a commercial supplier (merchant) of the product; (2) the product was defective when it left the defendant's control; (3) the product was not substantially altered; and (4) the plaintiff was making a foreseeable use of the product at the time of injury. The plaintiff need not be in privity with the defendant.

What are the three types of product defects?

(1) Manufacturing defect — the product departs from its intended design (differs from others off the line); judged against the manufacturer's own design. (2) Design defect — the entire product line is dangerous; tested by the consumer-expectation test or, more commonly, a reasonable-alternative-design/risk-utility test. (3) Warning defect (failure to warn) — inadequate instructions or failure to warn of non-obvious dangers.

What is the 'reasonable alternative design' (risk-utility) test for a design defect?

A product is defectively designed if the foreseeable risks of harm could have been reduced or avoided by adopting a reasonable alternative design, and the omission of that alternative rendered the product not reasonably safe. The plaintiff typically must show a feasible, cost-effective alternative design existed. This is the predominant modern test, supplementing the consumer-expectation test.

In strict products liability, who can be a defendant and who can be a plaintiff?

Defendants: any commercial supplier in the distribution chain — manufacturer, wholesaler, distributor, and retailer (a casual/occasional seller is NOT subject to strict liability). Plaintiffs: any foreseeable plaintiff — purchasers, users, and even bystanders. Privity of contract is not required.

What defenses are available in a strict products liability action?

Comparative/contributory fault (depending on jurisdiction — many apply comparative principles), assumption of the risk, and misuse that is unforeseeable (foreseeable misuse does NOT bar recovery). The 'state of the art' defense may apply to design/warning claims. The defendant can also show the product was not defective or was substantially altered after leaving its control.

What is the implied warranty of merchantability versus the implied warranty of fitness for a particular purpose?

Merchantability (UCC 2-314): implied in every sale by a merchant; the goods are fit for the ordinary purposes for which such goods are used. Fitness for a particular purpose (UCC 2-315): implied when the seller knows the buyer's particular purpose and that the buyer is relying on the seller's skill to select suitable goods. Both can be disclaimed and are subject to notice/privity rules.

What are the elements of common-law defamation?

(1) A defamatory statement (one that tends to harm reputation) of or concerning the plaintiff; (2) publication to a third party (intentional or negligent communication); (3) falsity (after constitutional cases); (4) fault on the defendant's part (under constitutional rules); and (5) damages (presumed for libel/slander per se, special damages otherwise).

What is the difference between libel and slander, and what is slander per se?

Libel is defamation in permanent/written form (general damages presumed). Slander is spoken defamation (plaintiff must prove special — pecuniary — damages) UNLESS it is slander per se. Slander per se categories (damages presumed): statements about (1) the plaintiff's business/profession, (2) commission of a serious crime, (3) having a loathsome disease, and (4) unchastity of a woman / sexual misconduct.

Under New York Times v. Sullivan, what must a public official or public figure prove regarding fault in a defamation case?

A public official or public figure must prove the defendant acted with 'actual malice' — meaning knowledge that the statement was false OR reckless disregard for whether it was true or false (a subjective standard). This is a constitutional requirement and must be shown by clear and convincing evidence.

Under Gertz v. Robert Welch, what must a private-figure plaintiff prove on a matter of public concern?

A private figure must prove at least negligence as to the statement's falsity to recover actual (compensatory) damages. To recover presumed or punitive damages, even a private figure must prove actual malice. If the matter is of purely private concern, states may allow presumed/punitive damages without actual malice.

What are the absolute and qualified privileges in defamation?

Absolute privileges (cannot be lost): statements by spouses to each other, and statements in judicial, legislative, and certain executive/official proceedings. Qualified (conditional) privileges: statements where there is a public interest in candor (e.g., references, reports to police, statements to those with a common interest); lost if abused — made outside scope or with malice.

What are the affirmative defenses to defamation?

(1) Truth — substantial truth is a complete defense (the defendant bears the burden where the constitutional cases don't shift falsity to the plaintiff); (2) Consent; (3) Absolute privilege; and (4) Qualified privilege (subject to loss through abuse/malice). Opinion that cannot be proven true or false is also protected.

What are the four branches of invasion of privacy?

(1) Appropriation of the plaintiff's name or likeness for commercial advantage; (2) Intrusion upon the plaintiff's seclusion (highly offensive to a reasonable person); (3) Public disclosure of private facts (private facts publicly disclosed, highly offensive); and (4) False light (publicly attributing to the plaintiff views/actions she doesn't hold, highly offensive). Privacy actions are personal and do not survive death (no privity; truth is not a defense to most).

Compare 'false light' invasion of privacy with defamation.

False light requires publicity (widespread dissemination), and the false attribution need only be highly offensive to a reasonable person (need not harm reputation). Defamation requires publication to even one third party and a statement harmful to reputation. Where the matter is of public concern, false light also requires proof of actual malice (Time, Inc. v. Hill).

What are the elements of intentional misrepresentation (fraud/deceit)?

(1) A misrepresentation of a material fact; (2) scienter — knowledge of falsity or reckless disregard; (3) intent to induce the plaintiff's reliance; (4) actual and justifiable reliance by the plaintiff; (5) damages (actual pecuniary loss). There is no liability for nondisclosure (silence) absent a duty to disclose.

What are the elements of tortious interference with contract / business relations?

(1) A valid contract or business expectancy between the plaintiff and a third party; (2) the defendant's knowledge of the relationship; (3) intentional interference by the defendant inducing breach or termination; and (4) resulting damages. Interference may be privileged (e.g., a defendant acting to protect its own legitimate financial or competitive interest, especially with mere prospective relationships).

Distinguish private nuisance from public nuisance.

Private nuisance: a substantial and unreasonable interference with another's use and enjoyment of his land (the plaintiff must have a possessory interest). Public nuisance: an unreasonable interference with the health, safety, or property rights of the community; a private individual may recover only if she suffered harm different in kind from that suffered by the public at large.

What is the test for an actionable private nuisance, and how does it differ from trespass to land?

Private nuisance requires interference that is both substantial (offensive to an average person in the community) and unreasonable (the gravity of harm outweighs the utility of the defendant's conduct). Unlike trespass (a physical invasion protecting the exclusive possession), nuisance protects use and enjoyment and typically involves intangible intrusions (odor, noise, smoke) — no physical entry needed.

What is required for an employer to be vicariously liable for an employee's tort under respondeat superior?

The employer is liable for torts committed by an employee acting within the scope of employment. Intentional torts are generally outside the scope unless force is inherent in the job (e.g., a bouncer), the tort furthers the employer's business, or is authorized. Minor 'detours' remain within scope; substantial 'frolics' do not.

When is a hiring party vicariously liable for the torts of an independent contractor?

General rule: a principal is NOT vicariously liable for the torts of an independent contractor. Exceptions: (1) inherently dangerous activities, and (2) non-delegable duties (e.g., a shopkeeper's duty to keep premises safe for customers). The hirer may still be directly liable for its own negligent selection/supervision.

What is the difference between joint and several liability and several (proportionate) liability among multiple tortfeasors?

Joint and several liability: each tortfeasor who caused an indivisible injury is liable for the entire judgment; the plaintiff may recover the full amount from any one (subject to contribution among defendants). Several (proportionate) liability: each defendant is liable only for his own percentage share of fault. Many comparative-fault states have modified or abolished joint and several liability.

Distinguish contribution from indemnification among joint tortfeasors.

Contribution: a defendant who pays more than her proportionate share recovers the excess from other tortfeasors, apportioned by relative fault (comparative contribution). Indemnification: shifts the ENTIRE loss to another party — available, e.g., where the indemnitee is only passively/vicariously liable (employer from employee) or under strict products liability up the distribution chain (retailer from manufacturer).