Torts
The MBE tests torts: negligence, intentional torts, strict liability, products liability, defamation, and privacy. Focus on duty, breach, causation, and defenses.
Negligence
- Duty: reasonable care; special relationships. Breach: reasonable person standard; res ipsa loquitur.
- Causation: actual cause (but-for) and proximate cause (foreseeable). Damages: personal injury, property, emotional distress.
- Defenses: contributory negligence (complete bar) vs comparative negligence (partial). Assumption of risk.
Intentional torts and strict liability
- Intent: purpose or knowledge with substantial certainty. Battery, assault, false imprisonment, trespass, conversion.
- Strict liability: abnormally dangerous activities, wild animals, products liability (manufacturing defect, design defect, failure to warn).
- Defamation: false statement of fact, publication, damages. Public figures need actual malice.
Worked example
A driver runs a red light and hits a pedestrian in a crosswalk. The pedestrian sues for negligence. Duty: drivers owe pedestrians reasonable care. Breach: running a red light is negligent per se if statute intended to protect pedestrians. Causation: but-for and proximate (foreseeable). Damages: medical bills, pain and suffering. Defenses: if pedestrian was jaywalking, comparative negligence may reduce recovery, but not bar in a comparative state. The driver is liable.
Traps
- Proximate cause: unforeseeable intervening causes may break chain; foreseeable rescue doctrine.
- Comparative vs contributory: PA uses modified comparative negligence (51% bar); MBE tests majority rules.
- Defamation: public figures need actual malice; private figures need negligence for actual damages.
- Products liability: strict liability for manufacturing defects; design defect requires risk-utility or consumer expectations.