Torts MBE Tip of the Day
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on torts.
You will see 25 scored torts MBE questions on the Multistate Bar Exam. In this post, we will review a torts 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.
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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 legal issue? What are the rule, analysis, and 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 law student invited her study group over to her house to study for the bar exam. One of her classmates complimented the perfume she was wearing and asked if she could try it on. The law student retrieved the bottle of perfume from her bedroom. When getting ready to spray the perfume, the classmate accidentally dropped the bottle on the floor, and it shattered into pieces. The law student suffered emotional distress as a result of the incident.
If the law student sued the classmate, the law student would most likely be successful if she sued for which of the following?
(A) Trespass to chattels.
(D) Negligent infliction of emotional distress.
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: Negligence
Legal Rule and Analysis: Negligence involves an accidental injury where the defendant owed a duty to the plaintiff, the defendant breached that duty, the plaintiff suffered damages, and the defendant’s actions were the actual and proximate cause of the plaintiff’s damages. The defendant does not intentionally cause harm, but rather acts in a manner that is not as a reasonable person should under the circumstances. To contrast, intentional torts require some sort of intent on the part of the defendant to complete the action that causes the harm or damage. One cannot be guilty of an intentional tort without some level of intent. Negligent infliction of emotional distress is typically presented in two common scenarios (zone of danger and bystander) and requires that the plaintiff suffer severe emotional distress that manifests in some sort of physical symptoms.
In this case, we are told in the fact pattern that the classmate “accidentally dropped the bottle.” This would preclude any intentional tort since the classmate did not act intentionally. The classmate could be said to be negligent since she did not handle the bottle utilizing the amount of care that a reasonable person would. Negligent infliction of emotional distress would not be present here since there is no evidence of emotional distress that manifested into physical symptoms.
Conclusion: The law student would most likely be successful if she sued for negligence.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (C) is therefore correct. (A) is incorrect for two reasons. First, the law student would not be successful in suing for an intentional tort because the classmate acted unintentionally. Second, because the facts state that the bottle “shattered into pieces” a mere trespass would not be the appropriate tort to sue for, if one were to sue for an intentional tort (conversion would be more appropriate). (B) is incorrect because conversion is an intentional tort. As noted above, the classmate acted unintentionally. Thus, an intentional tort would likely not be successful. (D) is incorrect because there is no evidence that the law student suffered emotional distress that manifested in physical symptoms. Further, it would not fit under the common scenarios of zone of danger or bystander.
MBE Tip: Make sure to identify not only the defendant’s relevant action, but also the level of intent behind that action. If you can eliminate the element of intent behind whatever the defendant did, then you can eliminate any intentional tort as possibilities for liability. Look for words like “accidentally,” as in the question above, which indicate a lack of intent on the defendant’s part. Negligence is the more appropriate tort when something is an accident.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: When the defendant causes accidental harm, the defendant is more likely to be liable for negligence as opposed to any intentional tort.
MBE Tip: Make sure to identify not only the defendant’s relevant action, but also the level of intent behind that action.
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