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 MBE questions.
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.
Torts MBE Tip of the Day
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? Next, what is the legal issue? What is the rule and analysis? Finally, 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 man owned a house in a suburban neighborhood. One day he discovered that the second step of his front porch was very wobbly. Without the time to fix the step this month, he created a sign to hang on handrail that leads up the stairs. The sign said “USE CAUTION – WOBBLY STEP – COULD CAUSE INJURIES.” The sign was properly placed and easily visible. A few days later, the man invited one of his new neighbors, an elderly woman, over for lunch. The neighbor approached the stairs, saw the sign, but decided to use the staircase regardless. When she stepped on the wobbly stair, it caused her to slip. The neighbor was still healing from a recently broken hip, and the resulting fall from this slip caused her hip to re-break.
If the neighbor were to sue the man for negligence, who is most likely to win?
(A) The neighbor, because the man breached his duty to the neighbor to make the step safe as soon as he learned of its dangers.
(B) The neighbor, because the step was the actual and proximate cause of the woman’s injury.
(C) The man, because he did not breach a duty that he owed to the neighbor.
(D) The man, because the neighbor assumed the risk that she may fall.
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 and Breach of Duty
Legal Rule and Analysis: To succeed on a claim for negligence, the plaintiff must prove (1) duty, (2) breach, (3) causation, and (4) harm. In a premises liability situation, the duty that is owed to a plaintiff depends on the plaintiff’s status on the land. A licensee is a social guest who has permission to enter the land but doesn’t confer an economic benefit on the possessor of the land. A land possessor has a duty to a licensee to warn or make safe all concealed dangers that the possessor knows of. The duty and breach of duty aspects of negligence are all about acting as a reasonable person would under the circumstances. Thus, any possessor must act as a reasonable person would in warning of or making safe all known dangerous conditions on the land.
In this case, the neighbor is a licensee as she had permission to enter the land but was not there to confer an economic benefit on the man. The man, therefore, had the duty to the neighbor to warn or make safe all concealed dangers that he knew of. The man knew the stair was wobbly and so he created a warning sign to post, indicating to anyone walking up the stairs that the wobbly stair posed a danger. The text of the sign was in all capital letters and posted in a conspicuous place. This was certainly a reasonably sufficient warning and the man acted as any reasonable person would when warning of this danger and it satisfies his duty owed to licensees.
Conclusion: The man will prevail because he did not breach his duty to the neighbor.
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 because the man did not have to make the dangerous condition safe as long as he maintained an adequate warning of it. The duty owed to a licensee is to warn or make safe, and thus the fact that the man did not immediately fix the step does not mean he automatically breached his duty. (B) is incorrect because just because the step caused the woman’s injuries does not mean that the man is automatically liable. The woman still has to show that the man breached a duty of care owed to her. (D) is incorrect for two reasons. First, it does not recognize that the man did not breach a duty of care. Second, even if the jury did find that the woman assumed the risk, under the pure comparative fault scheme that is to be applied on the MBE, the man would still be liable if he breached a duty; the woman’s damages would merely be reduced by the percentage of the fault attributed to her.
MBE Tip: Do not feel bad for a vulnerable plaintiff! The examiners would include this elderly lady who was recovering from a broken hip in order to make you feel like she should recover something. Always make sure there is a legal theory for recovery! If the defendant acted as a reasonable person would, there can be no recovery for negligence.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: A premises possessor must act as a reasonable person would in warning or making safe any concealed dangers that they know about when considering the duty owed to a licensee.
MBE Tip: Do not feel bad for a vulnerable plaintiff!
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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