Welcome to our MBE tip of the day series. This post focuses on a Tort MBE question. This tip contains an MBE question from our MBE Guide. 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 will not only cover substantive law but also strategy. So each MBE 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.
MBE Tip of the Day Instructions:
Do your best to answer this 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.
Torts MBE Question
A driver ran a stop sign and collided with a vehicle driven by a man. The man was injured. The man sued the driver and the city for negligence. The man alleged that the driver was negligent in not paying attention and the city was negligent for not properly trimming the brush that partially covered the stop sign. The jury found that the amount of damages is $100,000. The jury found that the man was 10% negligent. It also found that the driver is 85% negligent and the city is 5% negligent.
How much can the man recover from the city?
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Torts MBE Question
Legal Issue: How much can the man recover from the city – especially given that he was 10% negligent and the city was 5% negligent?
Legal Rule and Analysis: The “default” on the MBE is pure comparative negligence. So, the man can still recover damages even if he was negligent (no matter how negligent he is!). His damages will simply be reduced by the negligence of the others. He will not recover the full amount of damages since he was 10% negligent. He will recover $90,000.
The second relevant default rule is joint-and-several liability on the MBE. This means that the man can recover from either defendant but cannot recover twice. Thus, the man can seek $90,000 from either or both defendants, but cannot recover twice. After the city pays the $90,000, it could attempt to recover the $85,000 from the driver. However, note that if the driver does not have $85,000 to give the city, then the city is out of luck and will end up paying more than its fair share!)
Conclusion: The man could recover $90,000 from the city.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. The answer choice (B) is correct.
(A) is incorrect because under a joint-and-several liability theory, the plaintiff can recover the total amount of damages from one defendant (then leave it to the defendant to seek contribution from his co-defendant(s)).
(C) is incorrect because the man was 10 percent negligent so under a pure comparative negligence approach, his damages will be reduced by 10 percent. (Note: The result would be the same under a partial comparative negligence jurisdiction.)
(D) is incorrect. This answer choice would be correct under the common law doctrine of contributory negligence, but that is not followed on the MBE so do not apply it unless you are specifically told to do so.
Why is joint and several liability followed? This problem illustrates how joint-and-several liability jurisdictions are plaintiff-friendly. The plaintiff may recover all of his damages from one defendant (the city, above), and if the other defendant (the driver) cannot contribute $85,000, then the city will be the one holding the bag in the end (and paying more than its fair share!). The plaintiff will still recover the damages owed.
What would the result be in a jurisdiction that follows several liability? Remember in a several liability jurisdiction, no defendant pays more than their fair share. Thus, these jurisdictions are defendant-friendly. So, under the facts above, the plaintiff would only recover $5,000 from the city and it could recover $85,000 from the driver. (If the driver had no money and was insolvent, the plaintiff could not go after the city for the remaining amount.)
On the MBE, the plaintiff-friendly rules of pure comparative negligence and joint-and-several liability apply unless otherwise stated.
MBE Tip: Learn the theories behind the laws to remember them better. If you remember the reason for joint-and-several liability, you will likely not mix it up with several liability and you will get the answer right on the MBE!.
Key Takeaways and MBE tips from prior posts:
Takeaway for the Law: Joint-and-several liability and pure comparative negligence is the default on the MBE.
MBE Tip: Learn the theories behind the laws to remember them better.
Note: This tip came from our MBE Guide.
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