Many of our fondest (or at least most tolerable) memories of early law school material likely comes from torts. It features some of the most distinctive fact patterns you’ll see, with lots of plate-grabbing, package-exploding excitement, and people getting hurt in all manner of creative ways. It is also highly formulaic; checking off elements of an intentional tort or satisfying the elements of negligence will be a key factor. Many of you may not have reviewed torts heavily since 1L year, but I suspect you’ll find a lot of it has stuck with you. Here is a comprehensive outline of MBE testable subjects provided by the NCBE, with torts outlined briefly below.
1. Intentional Torts
Naturally, the list of intentional torts will be tested on the MBE, which includes (but is not limited to) assault, battery, false imprisonment, intentional infliction of emotional distress, and harms to property, such as trespass to chattels or conversion. Their various defenses will be relevant too, such as consent, privileges and immunities, protection (of self and others), protection of property, parental discipline, protection of public interests, the defense of necessity (public and private), and incomplete privileges.
Duty / Breach
Negligence is perhaps the biggest subject within torts, and it will be tested on the MBE. Identifying if there is an underlying duty — such as failure to act, unforeseeable plaintiffs, and the potential obligation to control the conduct of third parties — will be important.
Identifying the proper standard of care will also be important, including the “reasonably prudent person” standard, standards applicable to children, the physically or mentally impaired, professionals (like doctors), and other special classes with unique standards of care. Standards of care derived from custom or statutes are also relevant. Also, concepts relating to proof of fault, such as res ipsa loquitur, could be tested.
Causation / Damages
Causation is an important element of negligence, with “but for” and substantial causes, “multiple source” causes, and the proper apportionment of responsibility among tortfeasors (like joint and several liability) potentially appearing on the exam.
Liability, the limitations of liability, and any special rules of liability, are also need-to-know. This includes problems that arise from “remote” or “unforeseeable” causes, and the concepts of “proximate” and “superseding” causes. Included in this are also claims against owners and occupiers of land, claims of mental distress not involving physical harm, and other “intangible” injuries, as well as “pure economic loss” claims.
Liability concerning the acts of others is important as well, including employees and agents, independent contractors, and the distinctions between them, as well as “nondelegable” duties.
Finally, defenses to negligence will also be important. This includes the concept of contributory fault (and common law ideas like contributory negligence and the “last clear chance” rule), and the different kinds of comparative negligence that can vary from jurisdiction to jurisdiction. Assumption of risk is another defense you should know.
3. Strict Liability and Products Liability
The concept of strict liability, such as “abnormally dangerous activities,” and defenses to strict liability claims, will be relevant. This also includes claims against product manufacturers, and defenses to product liability. Note potential defendants in the chain of manufacture and distribution as well.
4. Other Torts
Finally, the catchall category of “other torts” will also be important. This includes nuisance claims and defenses, and defamation and invasion of privacy claims and defenses (and Constitutional limitations.) It also covers misrepresentation claims and defenses, and intentional interference with business relations claims and defenses.
I hope you found this summary of the testable torts MBE topics useful! Torts is a notoriously large subject. Still, I know once you dive in you’re going to remember a lot more of this than you expected.
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