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 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 posts that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these several 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.
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 passenger in a car sustained a serious back injury after the vehicle she was riding in was rear-ended by a negligent driver. The passenger sued both the man who was driving the vehicle that she was in as well as the driver of the vehicle that rear-ended their car. The jury found that the passenger’s damages totaled $100,000. The man was found to be 20% at fault. The driver was found to be 70% at fault. The passenger was found to be 10% at fault for not wearing a seatbelt. The jurisdiction has adopted the pure comparative negligence doctrine with joint-and-several liability.
What is the maximum amount, if anything, that the passenger can recover from the man?
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to the Tort MBE Question & Tort MBE Tips
Common Mistake: Students tend not to understand damages in torts!
Legal Issue: What will the woman recover in damages from the man?
Legal Rule and Analysis: Under a theory of joint-and-several liability, the woman can recover her full damages amount from either or both defendants (however, she cannot recover twice). This is the default rule on the MBE. (So if the question does not specify whether the jurisdiction follows joint-and-several liability rules, assume that it does!) Joint-and-several liability favors the plaintiff because she will be able to recover all of her damages even if one of the defendant’s is insolvent (i.e., doesn’t have any money). If this was a several liability jurisdiction, that would favor the defendant and the plaintiff would only be able to recover the $70,000 from the driver and the $20,000 from the passenger. (Several liability jurisdictions protect defendants against paying more than they technically owe.)
The fact that the woman was at fault would not bar her from recovering damages. The question specifies that “pure comparative negligence” approach is followed. (Even if the question does not specify that, apply this unless it says otherwise as this is the default on the MBE.) This means a plaintiff can recover no matter how at fault she is. Her damages will simply be reduced by her percentage of fault – in this case 10%. (Note that this is a stark contrast to the common law contributory negligence doctrine which would preclude the plaintiff from recovering.)
So, here the woman’s damages are $100,000 but she is 10% at fault so under a pure comparative negligence standard, she will be able to collect $90,000. Because the jurisdiction follows joint and several liability, she will be able to collect this entire damages award from either defendant (the driver or the man) but she cannot collect twice. So (B) is the correct answer as she could collect $90,000 from the man. (The man will then seek “contribution” from the driver in the amount of $70,000 since the man himself was only 20% at fault.)
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: (B) is correct for the reasons stated above. (A), (C), and (D) are incorrect for the reasons stated above.
MBE Tip: Remember the Tort “default” rules — that is, the pure comparative negligence standard will apply unless you are told otherwise. And the joint and several liability doctrine will apply unless you are told otherwise.
Key Takeaways for the day:
Takeaway for the Law: Joint-and-several liability means the plaintiff can recover her full damage amount from either defendant (but cannot recover twice for the same injury). The pure comparative negligence approach means that the plaintiff can recover from the defendant no matter what her percentage of fault is (her damages will simply be reduced by her percentage).
Tort MBE Tips: Remember the Tort “default” rules — that is, the pure comparative negligence standard will apply unless you are told otherwise. And the joint and several liability doctrine will apply unless you are told otherwise.
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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