pass the california bar exam, conquer the california bar exam jd advisingHow to Conquer Torts on the California Bar Exam

Here, we tell you how to conquer Torts on the California Bar Exam. Torts is regularly tested on the California Bar Exam. The California Examiners often test Torts in particular ways.

Here, we tell you how to approach Torts on the California Bar Exam, including some of the highly tested issues in Torts questions.

Torts on the California Bar Exam

1. First, know how Torts is tested. 

California has virtually always tested “general” law (rather than California law) on Torts essay questions. Torts is tested about once every year-and-a-half now. Since it is tested with relative frequency, you should be aware of the highly tested Torts issues.

Torts is sometimes combined with other essays. For example, in Feb 2017, it was combined with Remedies. And in July 2009, it was combined with Civil Procedure and Professional Responsibility.

Real Property questions also occasionally test nuisance, which is a Torts issue, even though it is not labeled as a Torts question by the Examiners. For example, nuisance was tested in Feb 2018, Feb 2012, and Feb 2007.

2. Be aware of the highly tested issues. 

The State Bar of California tests certain issues over and over again in Torts questions. (We have a nice summary of these in our California Bar Exam One-Sheets.)

Some of the “favorite” California Bar Exam issues on Torts questions include the following:

  • Negligence is by far the Examiners’ favorite issue! Premises liability is tested very frequently, with the standard of care owed to invitees being tested the most. Know that the standard of care depends on the legal status of the plaintiff.
    • Undiscovered trespasser: an undiscovered trespasser is not owed any duty of care.
    • Discovered trespasser: the premises possessor must warn or make safe any unreasonably dangerous concealed artificial (man made) conditions that the premises possessor knows of.
    • Licensee (e.g., a social guest): the premises possessor must warn or make safe all concealed dangers that the premises possessor knows of.
    • Invitee (one that enters land to confer an economic benefit or enters land open to the public at large): the premises possessor must: warn or make safe all dangers that the premises possessor knows or should know of.
  • Negligence per se: A plaintiff may sue under a theory of negligence per se when it can show that (1) the defendant violated a statute without excuse, (2) the plaintiff was in the class of people the statute aimed to protect, and (3) the plaintiff received the injury that the statute aimed to prevent. This establishes duty and breach.
  • Intentional torts are only occasionally tested with battery, assault, false imprisonment, trespass, conversion, and IIED all appearing on the exam in past years.
  • Products liability: Products liability occasionally is tested. Design defects are the most common. In a design defect case, the product came out exactly as the manufacturer intended. However, there is an alternative design that is safer, practical, and cost-effective.
  • Nuisance: As noted above, nuisance has been tested three times in the last 15 years in Real Property questions. For a private nuisance, a plaintiff must show that there is a substantial unreasonable interference with the plaintiff’s use or enjoyment of her property. For a public nuisance, the plaintiff must show that an act unreasonably interferes with the health, safety, or morals of a community. In order to sue, the plaintiff must suffer unique damages.

3. Be aware of the approach you should use for highly tested Torts topics. 

If you look over past Torts questions, you will see some patterns.

For example:

  • In an essay question where negligence is an issue, you should mention the following defenses in your answer: contributory negligence, assumption of risk, and comparative negligence. You can note that contributory negligence is an old common law doctrine that states have moved away from applying. But still mention it!
  • In an essay answer on products liability, you should analyze both strict products liability and negligent products liability (e.g., discuss duty, breach, cause, and harm). Many students only discuss strict products liability but you will get points for mentioning negligent products liability as well!

Getting down a general approach for what the Examiners expect to see when certain issues are tested will help maximize your score on a Torts question.

4. Focus a lot of your study time on negligence. 

Negligence is the most tested topic in Torts on the California Bar Exam essay portion. It is also the most tested topic on the MBE portion of the bar exam (with 12–13 questions covering negligence!). So, focus a lot of study time on negligence. If you happen to see an essay question on negligence, you will pick up a lot of points because you will get credit for that and for the 12–13 MBE questions that will assuredly be scored questions on the MBE! Dedicating a lot of time to making sure you have mastered negligence is a key way to study efficiently for the bar exam.

5. Practice! 

The best way to get good at Torts questions is to practice essays. This will help you become acquainted with how Torts is tested (including crossover essays). And, it will help you master the highly tested issues.

Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Torts essay questions:

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 16: Trusts.

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