Top MEE Rules

Question 1

Battery (6.9%)

Answer 1

A battery occurs when the defendant:

(i) causes or is a substantial factor in bringing about
(ii) a harmful or offensive contact (objective standard)
(iii) with the plaintiff’s person (or anything connected to it);
(iv) with the intent to cause the contact (or knowledge that the contact was substantially certain to result from defendant’s conduct)

Question 2

Consent: impact on intentional tort claims (6.9%)

Answer 2

a) The plaintiff’s consent to the defendant’s conduct is a defense to intentional torts (not crimes), provided that:
(1) The consent was valid (e.g., no fraud, incapacity, etc.); AND
(2) The defendant’s conduct remained within the boundaries of the plaintiff’s consent (e.g., cannot use a knife in a boxing match).
b) The plaintiff’s consent may be express or implied through words or conduct.

Question 3

Elements of negligence (41.4%)

Answer 3

The elements of the prima facie case for negligence are as follows:

(1) The defendant owed a duty to the plaintiff to conform to a specific standard of care;
(2) The defendant breached that duty;
(3) The breach was the actual and proximate cause of the plaintiff’s injuries; AND
(4) The plaintiff sustained actual damages or loss.

Question 4

In general, to whom does a defendant owe a duty of care? (6.9%)

Answer 4

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Note: While the foreseeability of harm alone does not create a duty, most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty.

Question 5

What is the rule about the foreseeability of a particular plaintiff being harmed? (And is it part of duty or causation?) (6.9%)

Answer 5

Cardozo/Majority: A duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”) as a result of the defendant’s negligent conduct. Cardozo in Palsgraf: the defendant is liable only to plaintiffs who are within the zone of foreseeable harm.

Andrews/Minority/Restatement: If the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) harmed as a result of his breach. The issue of whether the plaintiff is foreseeable is reserved for proximate cause.

Question 6

Affirmative duty to act (10.3%)

Answer 6

In general, there is no affirmative duty to act to prevent harm to another. However, there are a number of situations in which an affirmative duty is imposed.

[Acting Affirmatively Really Can Save People]

(1) Assumption of duty: A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue. (Exception: Good Samaritan statutes)
(2) Authority: One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control.

–parent/child, employer/employee, mental health professional/patient, custodian/prisoner

(3) Relationship: A defendant with a unique relationship to a plaintiff may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

–business/customers, common carrier/passenger, innkeeper/guest, employer/employee, parent/child, hospital/patient, school/student, custodian/prisoner, landlord/tenant, land possessor/entrant

(4) Contract: There is a duty to perform contractual obligations with due care.
(5) Statute: A statute that imposes an obligation to act for the protection of another—but does not expressly or impliedly create or reject a private cause of action—may give rise to an affirmative duty to act.
(6) Placing another in peril: A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

Question 7

In general, what is the standard of care owed by the defendant to the plaintiff? (13.8%)

Answer 7

Generally, the standard of care imposed on a defendant is that of a reasonably prudent person under the circumstances. A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

In determining whether a specific precaution was warranted, a jury must weigh the probability and gravity of the injury against the burden of taking such precautions.

Question 8

What is the standard of care imposed upon a child… (10.3%)

1. in general?
2. who is engaged in a high-risk “adult” activity?
3. of a particularly young age?

Answer 8

1. That of a reasonable child of similar age, intelligence, and experience.
2. Held to the same standard as an adult.
3. Under the Third Restatement, children under the age of five are generally incapable of negligent conduct.

Question 9

Are intoxicated individuals held to the same standards as sober individuals? (13.8%)

Answer 9

Intoxicated people are held to the same standard as sober people UNLESS the intoxication was involuntary.

Question 10

Are community customs relevant for purposes of determining reasonableness? (13.8%)

Answer 10

Community customs may be relevant in determining reasonableness, but they are NOT dispositive.

Question 11

What are the standards of care for professionals, physicians, and psychotherapists? (6.9%)

Answer 11

a) Professionals. A professional (e.g., nurses, lawyers, accountants, engineers, architects, etc.) is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities.
b) Physicians. Physicians are held to a national standard of care and have a duty to disclose the risks of treatment to enable a patient to give informed consent. This duty is only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.
c) Psychotherapists. In the majority of states, psychotherapists have a duty to warn potential victims of a patient’s serious threats of harm if the patient has the apparent intent and ability to carry out such threats and the potential victim is readily identifiable.

Question 12

Under the traditional approach, what is the standard of care that landowners owe to entrants upon their land? How many jurisdictions follow this approach? (6.9%)

Answer 12

Under the traditional approach, the standard of care that landowners owe to entrants upon their land depends on the status of the land entrant as an invitee, a licensee, or a trespasser. Approximately one-half of all jurisdictions continue to follow these traditional distinctions.

(1) Trespassers. A trespasser is a person who enters the landowner’s property without valid consent or necessity. There are two types of trespassers:
(a) Discovered or anticipated trespassers enter the land without consent, but may be expected by the landowner. The landowner owes a duty to discovered/anticipated trespassers to warn of (or make safe) known artificial dangers on the land that pose a risk of death or serious bodily harm.
(b) Undiscovered or unanticipated trespassers enter the land without consent, and are NOT expected by the landowner. The landowner owes NO duty to undiscovered trespassers.
(2) Licensees. A licensee is a person who enters the land with the landowner’s permission, such as a social guest. The landowner has a duty to correct, or at least warn licensees about, concealed dangers (artificial or natural) that are known or should be known to the landowner. The landowner must also exercise reasonable care in conducting activities on the land.
(3) Invitees. An invitee is a person who is invited on the property as a member of the public or as a business visitor. The landowner owes a duty to the invitee similar to the landowner’s duty to licensees, with the additional duty to reasonably inspect the land for hidden dangers (artificial or natural).

Question 13

Under the modern approach, what does the standard of care owed to land entrants depend upon? What is the Third Restatement version? (6.9%)

Answer 13

Courts that follow the modern approach (as well as the Third Restatement) require that a standard of reasonable care applies to invitees and licensees, abolishing the distinction between them.

These jurisdictions vary in their approaches to the duty of care owed to trespassers:

(a) Same standard for trespassers: A few states now take the approach that land possessors owe trespassers, like all other land entrants, a reasonable standard of care under all the circumstances.
(b) “Flagrant” trespassers distinguished: In the case of the Third Restatement, the standard of reasonable care applies to all land entrants except for “flagrant” trespassers, who are owed only the duty not to act in an intentional, willful, or wanton manner to cause physical harm.

Question 14

Negligence per se (13.8%)

Answer 14

a) When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:
(1) Is in the class of people meant to be protected by the statute; AND
(2) Suffers the type of harm the statute was designed to protect against.
b) The defendant will only be liable under negligence per se if his violation of the statute was the proximate cause of the plaintiff’s injury.
c) NOTE. If a statute is given to you in the fact pattern of a torts essay question, you MUST discuss negligence per se as the applicable standard of care.

Question 15

Res ipsa loquitur (6.9%)

Answer 15

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant’s negligent conduct in the absence of direct evidence of such negligence.

Under the traditional approach, the plaintiff must prove that:

i) The type of accident would not normally occur absent negligence (i.e. it is reasonable to conclude that negligence is the most probable explanation);
ii) The injury was caused by an agent or instrumentality within the defendant’s exclusive control (construed loosely); and
iii) The injury was not due to the plaintiff’s own actions (in some jurisdictions).

Under the Third Restatement approach (rarely adopted), the fact-finder may infer that the defendant has been negligent when:

i) The accident that caused the plaintiff’s harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and
ii) The defendant is a relevant member of that class of actors.

Question 16

Actual caustion (13.8%)

Answer 16

But-For Test: To prove actual cause, the plaintiff must show that her injury would not have occurred BUT FOR the defendant’s breach.

Substantial Factor Test: However, if traditional “but for” causation cannot be shown, most courts are willing to implement a “substantial factor” test. Under a substantial factor test, when the defendant’s conduct is one of multiple causes that may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, actual cause can be established if the defendant’s breach was a substantial factor in bringing about the plaintiff’s harm.

Question 17

Proximate causation (13.8%)

Answer 17

To prove proximate cause, the plaintiff must show that her injury was a foreseeable result of the defendant’s conduct.

An intervening cause is an outside force or action that contributes to the plaintiff’s harm after the defendant’s breach has occurred. If the intervening cause is unforeseeable, it is a superseding cause and the defendant’s liability to the plaintiff will be cut off from that point forward.

Foreseeable: Further negligent acts (e.g., medical malpractice), injuries sustained when running from danger, injuries sustained by a rescuer during a rescue attempt (but firefighters and police officers are barred from collecting damages)

Unforeseeable “superseding cause”: Criminal acts, intentional torts, and nature-induced “acts of god”

Question 18

Eggshell plaintiff rule (10.3%)

Answer 18

Under the eggshell plaintiff rule, the defendant is liable for ALL harm suffered by the plaintiff, even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition that aggravates the harm.

Question 19

Vicarious liability of employers (27.6%)

Answer 19

Vicarious liability is a form of strict liability in which one person is liable for the negligent actions of another. Under the doctrine of respondeat superior, an employer (principal) may be liable for torts committed by an employee (agent) if:

(1) An employer-employee relationship exists (NOT an independent contractor relationship); AND
(a) In determining whether an employer-employee relationship exists, the most important consideration is the extent of control that the principal exercises over the details of the agent’s work (the more control the principal exercises over the agent, the higher the likelihood that the agent will be considered an employee as opposed to an independent contractor).
(2) The employee’s commission of the tort occurs within the scope of employment.
(a) Defining scope: Activity is within the scope of employment when the employee’s conduct is of the same general nature as that authorized, or incidental to the conduct authorized by the employer. In making this determination, courts examine whether the employee’s conduct was:
(i) A function for which the employee was hired to perform;
(ii) Within the employer’s authorized time and space limits;
(iii) Conducted to serve the employer; AND
(iv) Foreseeable to the employer.
b) Detours: The employer remains liable during an employee’s detour (i.e., a minor deviation from the scope of employment), even if the detour is mainly for the employee’s own personal reasons. However, the employer does NOT remain liable during an employee’s frolic (i.e., a major deviation from the scope of employment).
c) Intentional torts: Generally, employers are NOT liable for the intentional torts of employees UNLESS:
(i) The intentional tort was authorized by the employer; OR
(ii) Force is within the scope of employment in the employee’s work (e.g., security guards).

Question 20

Business partners (6.9%)

Answer 20

The negligence of one business partner can be imputed on other business partners if it is committed within the scope of the business’s purpose.

Question 21

Negligent infliction of emotional distress (6.9%)

Answer 21

Generally, there are three ways that the plaintiff can recover for NIED:

(1) Zone of Danger. The plaintiff can recover for NIED if:
(a) The defendant negligently caused a threat of physical impact;
(b) The plaintiff was within the “zone of danger” of the threatened physical impact; AND
(c) The threat of physical impact caused emotional distress.
(2) Bystander Recovery. The plaintiff bystander can recover for NIED if:
(a) The defendant negligently inflicted bodily injury to another;
(b) The plaintiff is closely related to the person injured by the defendant;
(c) The plaintiff was present at the scene of the injury; AND
(d) The plaintiff personally observed the injury.
(e) SOME jurisdictions also require that the plaintiff manifest physical symptoms after witnessing the injury.
(3) Special Relationship. The plaintiff can recover for NIED in certain circumstances where a pre-existing relationship exists between the defendant and plaintiff (e.g., doctor/patient). This commonly arises when:
(a) The defendant negligently mishandles a corpse; OR
(b) The defendant negligently provides false medical information (e.g., the plaintiff is told that she has terminal cancer when she is, in fact, perfectly healthy).

Question 22

Joint and several liability vs. pure several liability (10.3%)

Answer 22

Joint and several liability (default rule on MBE). When two or more parties are jointly and severally liable, each party is independently liable for the full extent of the damages stemming from the tortious act. Thus, if a plaintiff wins a money judgment against jointly and severally liable defendants, the plaintiff may collect the full value of the judgment from any one of them.

Contribution allows a defendant who pays more than his share of the total liability to recover from the other liable defendants (cannot recover more than the other liable defendant’s percentage share of fault – based on a pure comparative fault theory).

Pure Several Liability: Each tortfeasor is liable only for his proportionate share of the plaintiff’s damages.

Question 23

Multiple tortfeasors (6.9%)

Answer 23

Alternative Liability/Causation: If the plaintiff’s harm was caused by (i) one of a small number of defendants usually 2-5, (ii) each of whose conduct was tortious (but it cannot be determined which one caused the harm), and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm. Courts will impose joint and several liability on both/all Ds unless one can show he did not cause the harm.

Concert of Action: If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all defendants are jointly and severally liable.

Market-Share Liability: When a plaintiff can show that a defective product produced by several manufacturers was fungible in its relation to its capacity to cause harm, the court may permit the jury to apportion damages on the basis of each manufacturer’s share of the market for the product.

Res Ipsa Loquitur: Courts often generously interpret the “exclusive control” requirement of res ipsa, which means the doctrine is sometimes applied when there are multiple possible tortfeasors.

Medical malpractice: In medical malpractice cases when several physicians, nurses, and other medical personnel have access to the plaintiff during surgery, a small number of jurisdictions apply res ipsa loquitur, finding that each defendant has breached a duty of care unless he can exonerate himself. In the absence of such exonerating evidence, the courts hold all defendants jointly and severally liable.

Products Liability: In negligence cases involving products, even if the product passes through many hands—those of the manufacturer, the distributor, the retail store, and the consumer/user—if the manufacturer wrapped the package or it is clear that any negligence took place during the production process, many courts ignore the exclusivity requirement.

Question 24

Contributory negligence (6.9%)

Answer 24

In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if his own negligence contributed to his injury in any way, UNLESS the defendant:

(1) Was engaged in wanton and willful misconduct; OR
(2) Had the last clear chance to avoid injuring the plaintiff, but failed to do so.

Note: Contributory negligence is NOT a valid defense for intentional torts.

Question 25

Comparative fault (10.3%)

Answer 25

In a comparative fault jurisdiction, the plaintiff’s own negligence limits recovery but is NOT necessarily a complete bar to recovery. Jurisdictions have adopted two different approaches to comparative fault:

(1) Pure Comparative Negligence (default on the MBE). Under pure comparative negligence, the plaintiff’s recovery is reduced by the percentage of fault the jury attributes to the plaintiff’s own negligence (e.g., if the jury finds the plaintiff is 95% at fault, the plaintiff can recover 5% of her damages).
(2) Modified Comparative Negligence. Under modified comparative negligence, the plaintiff’s recovery depends on the percentage of the fault attributed to the plaintiff.

< 50%: recovery reduced by plaintiff’s percentage of fault.

= 50%: recovery reduced by 50% (majority view) or barred (minority view).

> 50%: recovery barred.

Question 26

Products liability: tests (10.3%)

Answer 26

a) A strict liability claim under products liability requires the plaintiff to show:
(i) The product was defective in manufacture, design, or failure to warn;
(ii) The defect existed when the product left the defendant’s control; AND
(iii) The defect caused the plaintiff’s injury when the product was used in a foreseeable way.
b) Manufacture Defects. A defect in manufacture requires the plaintiff to show that the product:
(i) Deviated from its intended design; AND
(ii) Fails to conform to the manufacturer’s own design.
c) Design Defects. There are two tests for a defect in design:
(1) Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect.
(2) Under the risk-utility test, the plaintiff must show that the product’s risks outweigh its benefits AND that there is a reasonable alternative design.
d) Failure to Warn. A failure to warn defect requires the plaintiff to show:
(i) The plaintiff was NOT warned of the risks regarding the use of the product;
(ii) The risks are NOT obvious to an ordinary user; AND
(iii) The designer/manufacturer was in fact aware of such risks.

Question 27

Products liability: proper plaintiffs and defendants (10.3%)

Answer 27

a) Plaintiffs. Any person foreseeably injured by a defective product (e.g., purchasers, other users, bystanders, etc.) may pursue a products liability claim.
b) Defendants. A strict liability claim under products liability may ONLY be brought against a merchant (i.e., a person or entity who routinely deals in goods of the type) who is in the chain of distribution (e.g., manufacturer –> wholesaler –> retailer).

Question 28

Breach of duty

Answer 28

A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person. The modern trend is to perform a cost-benefit analysis to determine whether the defendant has acted in accordance with the standard of care. This analysis considers:

(i) the foreseeable likelihood that the defendant’s conduct would cause harm,
(ii) the foreseeable severity of any resulting harm, and
(iii) the defendant’s burden in avoiding the harm.