Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on torts.
You will see 25 scored Tort MBE questions on the Multistate Bar Exam. Most of the questions (about 12-13) will test negligence. In this post, we will review a negligence question together. 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 “MBE tip of the day” 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 torts 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 local resident arrived at his favorite fast-food restaurant intending to purchase lunch. When the resident entered the building he accidentally bumped into another patron, causing some of the patron’s drink to spill on the floor. The collision was not observed by any restaurant employees. The resident proceeded to order his food. About one minute later, another customer entered, slipped on the wet floor, and sustained a broken wrist from the fall which necessitated a surgical operation. Arguing that the restaurant was negligent in protecting patrons from dangers, the customer sued the restaurant in tort.
Will the customer succeed in his cause of action?
(A) Yes, because the restaurant breached its duty to inspect the premises and warn of the dangerous condition or make it safe.
(B) Yes, because the restaurant is vicariously liable for the torts of its patrons.
(C) No, because the customer’s true claim is against the resident that caused the drink to spill.
(D) No, because the restaurant did not breach any duty owed to the customer.
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: Is the restaurant liable for negligence?
Legal Rule and Analysis: An invitee is a person that is entering a place held open to the public or is entering the premises with the purpose of conveying an economic or business-related benefit on the premises owner. Premises possessors must exercise ordinary care to protect invitees from dangers that they either know or should know of. Premises possessors owe invitees the duty to reasonably inspect the premises for dangerous conditions.
In the question at hand, the customer is clearly an invitee because he entered the property to convey an economic benefit to the owner. The restaurant, therefore, had the duty to warn or make safe any dangers and to reasonably inspect the property. However, in this case, there are no facts to indicate the restaurant acted unreasonably. The spill occurred merely 1 minute prior to the accident and it would not be unreasonable for the spill to remain undiscovered by the restaurant at that time. Further, the facts state that no employees observed the collision.
Conclusion: The restaurant is not liable for negligence as no duty was breached.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. The answer choice (D) is therefore correct. (A) is incorrect because there was no breach of duty. The duty is simply to behave reasonably and inspect the premises. The restaurant is not strictly liable for all harms that occur on the premises. (B) is incorrect because while the restaurant is liable for the torts of its employees in many cases, the restaurant is generally not liable for torts committed by customers (unless the restaurant itself responds inappropriately to those torts, which did not occur here). (C) is incorrect because just because there is a second guilty party does not negate any liability of the restaurant. Indeed, the customer could go after one or both parties (but could not recover twice for the same injury).
MBE Tip: Look for incorrect statements of law that allow you to eliminate an answer choice immediately. Even if you don’t understand the fact pattern or are confused by how to apply the law in a specific situation, you can still increase your chances of getting the answer right through the process of elimination. Take the question above. You may be immediately able to eliminate (B) or (C) if you understand the basics of vicarious liability. If so, only two or three possible answers remain. A one in two or one in three chance of getting the answer right is certainly better than one in four! By contrast, if you don’t know the law, you might first pick answer choice (D) (the correct one) but then second-guess yourself and choose (B) or (C) instead because they “sound better.” This is why knowing the law by itself is so important!
Key Takeaways and MBE tips from prior posts
Takeaway for the Law: A premises owner owes invitees the duty to reasonably inspect the property, but will not be held liable if there are no facts indicating unreasonable behavior.
MBE Tip: Memorizing the rules will allow you to immediately eliminate choices with incorrect statements of law, thereby improving your chances of getting the answer right!
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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