MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series — this post focuses on Tort MBE tips. We started this MBE strategies series months ago and it was so popular that we are continuing it each bar exam administration.
You will see 25 scored Tort MBE questions on the Multistate Bar Exam.
Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Do your best to answer this Tort MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Tort MBE Question
A student wanted to play a trick on his teacher. As the teacher was going to sit down in her chair, the student moved the chair away from the teacher. The teacher did not see the student moving the chair away. The teacher tried to sit down and ended up falling on the ground. The teacher broke her tailbone as a result. The teacher sued the student.
Is the student liable for the teacher’s injury?
(A) Yes, the student is liable for battery.
(B) Yes, the student is liable for negligence.
(C) No, because no direct contact occurred.
(D) No, because the student did not know with substantial certainty the teacher would break her tailbone.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Real Property MBE Question
Legal Issue: Is the student liable for a tort?
Legal Rule and Analysis: A battery is an act with intent to cause a harmful or offensive contact or imminent apprehension of that contact and a harmful or offensive contact directly or indirectly results.
Here, the answer is (A). The student is liable for battery. The student acted by moving the chair. The student had the intent to cause the contact—which was the teacher hitting the floor. Note it makes no difference that the student did not contact her directly. The student acted with intent to cause a contact and that contact occurred. Note, also, that it does not make any difference that the student didn’t intend for the teacher to break her tailbone. The student intended the contact is therefore liable for any injury that results as a result of that contact.
Conclusion: (A) is correct.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. (B) is incorrect because negligence is not appropriate when the student’s act was intentional. Here, the student intended to move the chair. (C) is incorrect because a contact resulted when the teacher hit the floor. There does not need to be direct contact between the student and teacher. The definition of battery states that a “harmful or offensive contact directly or indirectly results.” Thus the contact needs to be a result of the action. (D) is incorrect because it is basically stating that the student did not have the proper intent for battery. Intent is defined as having the purpose or knowledge that the contact would result. And knowledge is defined as “substantial certainty” in battery cases. However, the student does not need to have “substantial certainty” that the exact harm of the teacher breaking her tailbone will result – only that the harmful or offensive contact will result. Here the student certainly intended, at a minimum, an offensive contact. So it does not matter that the student did not intend the exact harm.
MBE Tip: If you struggled with this one, it may be because you did not have the elements of battery memorized. (If you do have them memorized, you can walk through each one – e.g., did she act? did she have intent? was there a harmful or offensive contact?) Sometimes going back to the rule statement will reveal the answer.
Key Takeaways and MBE tips for the day:
Takeaway for the Law: A battery is an act with intent to cause a harmful or offensive contact or imminent apprehension of that contact and a harmful or offensive contact directly or indirectly results.
MBE Tip: If you struggle to answer a question correctly, walk through the rule statement in your mind. Sometimes that is all you need to do to get the right answer!
Want to see Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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