Torts on the Multistate Essay Exam: Highly Tested Topics and Tips
Here, we give you an overview of Torts on the Multistate Essay Exam (MEE). We will reveal some of the highly tested topics and give you tips for approaching a Torts MEE question.
Note that Torts is regularly tested on the Multistate Essay Exam. Thus, it is important to be aware of the key principles that are tested and how to approach this MEE topic generally.
Torts on the Multistate Essay Exam
1. First, be aware of how Torts is tested
Torts is tested about once a year on the Multistate Essay Exam. While it is frequently tested on its own (i.e., it is not combined with another subject), it has been combined with Agency (recently, where issues of vicarious liability of an employer was tested).
Torts is predictable. Basic Tort principles are tested and if you are familiar with the highly tested topics, you should be well on your way to writing a high scoring Torts MEE answer.
2. Be aware of the highly tested Torts issues
The Examiners tend to test several of the same issues repeatedly in Torts Multistate Essay Exam questions. You can maximize your score by being aware of these highly tested issues. (We have a summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)
Some of the highly tested Torts MEE issues include:
When we see Torts on the Multistate Essay Exam, negligence is by far the most heavily tested topic. Thus, it would be very beneficial for you to focus significantly on this issue. In general, remember that the basic elements are: duty, breach, causation (both actual and proximate), and damages. It is critical to understand these four elements. Many students understand negligence generally but struggle with topics of actual and proximate causation, or duty. If you find yourself in this boat, seek tutoring, rewatch your bar exam course lectures, or get help from a friend. These tricky topics (causation, duty) are highly tested on the MEE! Indeed, causation also appears in Criminal Law MEE questions that test homicide. So you could even see a causation issue in that MEE question!
And, as noted below, negligence is the most-tested topic on the MBE. It is worth it to learn it well!
Children and their duty
Generally, a child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances. One exception is when the child is engaging in an adult activity. Additionally, some states follow the “tender years doctrine,” where children under a certain age (e.g., seven years old) cannot be found negligent (though this is not commonly applied on the MEE).
This topic has turned up in three of the most recent years that we’ve seen Torts on the Multistate Essay Exam. The standard of care depends on the plaintiff’s legal status at the time of entry.
- Undiscovered trespassers are not owed a duty of care (but the landowner cannot act willfully or maliciously).
- If the trespasser is “discovered” (that is, the landowner knows or should know of the trespasser), then the landowner must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of.
- For licensees (e.g., social guests—like friends or family), most MEE answers state that landowners owe the duty to reveal hidden dangers of which the landowner knows or has reason to know of and which the entrant is unlikely to discover. (However, there is no duty to inspect.)
- For invitees (e.g., those that are invited onto land open to the public or into businesses), the landowner must warn or make safe all dangers that the landowner knows or should know of. For this category of entrants, there is a duty to inspect.
Negligence per se
If a question involving Torts on the Multistate Essay Exam presents a statute that establishes a duty of care, you should consider negligence per se. To sue under this theory, the plaintiff must show that (1) the defendant violated the statute without excuse, (2) the plaintiff was in the class of people the statute was trying to protect, and (3) the plaintiff received the injury that the statute was trying to prevent. If these three things can be demonstrated, then the plaintiff has proven the duty and breach elements of negligence.
Remember that just because the plaintiff proves the elements of duty and breach does not mean they automatically win the case! The plaintiff must still prove cause and harm!
Vicarious liability (usually coupled with Agency)
Vicarious liability is a more commonly tested topic in Torts on the Multistate Essay Exam. You should understand that employers or principals are vicariously liable for torts of their employees or agents if the torts are committed within the scope of their employment. This is usually considered both a Torts and an Agency question when it is tested, as this is a common Agency principle.
Be familiar with other topics like strict products liability, strict liability for abnormally dangerous activities, and intentional torts.
3. Focus a lot of your study time on negligence
Negligence is the most tested topic in Torts on the Multistate Essay Exam. It is also the most-tested topic on the Multistate Bar Exam (MBE) portion of the bar exam (with 12–13 questions covering negligence!). So, focus a lot of study time on negligence. If you happen to see an essay question on negligence, you will pick up a lot of points because you will get credit for that and for the 12–13 MBE questions that will assuredly be scored questions on the MBE! Dedicating a lot of time to making sure you have mastered negligence is a key way to study efficiently for the bar exam.
Practice is critical if you want to master Torts on the Multistate Essay Exam. Some of the concepts are difficult to learn in theory but make much more sense after you see how they are actually tested on the MEE. And, many concepts are tested in the same way on the MEE.
Here are some links to (free) Torts Multistate Essay Exam questions and National Conference of Bar Examiners (NCBE) point sheets. (If you would like to purchase a book of Torts MEE questions and NCBE point sheets, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)
- July 2012 MEE: negligence
- Feb 2012 MEE: negligence, vicarious liability
- Feb 2011 MEE: battery, strict products liability
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