MBE Tip: Res Ipsa Loquitur

It’s important to remember that res ipsa loquitur plays a very specific role in any negligence question. It prevents the plaintiff from losing on a directed verdict, summary judgment, or etc., even though the plaintiff cannot present direct evidence of negligence. It’s, essentially, an inference that a duty was breached. That’s a simplified way to think about it.

It’s not, however, a win for the plaintiff even if “the thing speaks for itself.” There are multiple elements involved in proving negligence, and res ipsa loquitur satisfies a subset of them. Still need causation, still need damages. Answer choices will try to bait you with this common mistake.

MBE Tip: Harm ≠ Fault ≠ Liability

In Torts questions, you've got to find the fault. 

The young child is hit by a car and is now paralyzed. Any fault on the part of the driver of the car? The senior citizen somehow succumbs to a horrible fate. Any fault? (Other than possibly by the plaintiff). The person who has a heart attack while driving and kills another driver. Was that person driving safely prior to the heart attack? Any prior heart attacks that might have made it reasonable to avoid driving? Any fault?

There's only one area in Torts that does not require fault: strict liability. And unless the question is asking about a lion (or other wild animal), a dangerously defective product, or an abnormally dangerous activity, you've got to find the fault before finding liability.

Fault (Torts)

You're working on a Torts question for the MBE. You see a young child get hit by a car, and you're ready to pick the answer claiming liability for the driver.

Was the driver at fault?

The child is now suffering from serious injuries and will suffer from those injuries for the remainder of his life.

Was the driver at fault.

The child's grandmother watched the child get hit by the car and now is suffering from severe and extreme emotional distress.

Was the driver at fault?

My point: The MBE writers will throw at you all the harm. But liability here doesn't result from harm; it results from fault. There are, of course, instances in which no fault is required for liability (see, for example, a person who owns a pet 🐅 ), but it would be fair to think of that as the exception to the rule, since there aren't all that many instances of strict liability. Animals, abnormally dangerous activities, and products.

In every Torts question, look for the fault.

MBE Trap: Negligence

In a negligence question, the fact that someone is harmed provides you with potential damages, but does not provide you with a reason to conclude anything about liability. This is so even if the person harmed is a child, or the elderly, or however else the test writers want to try to pull on your emotional strings.

Damages is a necessary condition of a claim for negligence, but it's not a sufficient condition. (As an aside, it's interesting how this type of logical reasoning that you might remember from the LSAT plays into the MBE quite often.) When you see in a negligence question terrible harm caused to a vulnerable person, make sure that there's at least some degree of fault on the part of the person sued. And then make sure that the elements of causation are satisfied. Then, it's fair to make a conclusion

Res Ipsa Loquitur

Try not to make res ipsa loquitur more difficult than it has to be. In a negligence question ask:

1: whether the claimed injury is the kind of injury that generally could not have occurred unless the defendant was negligent. "The thing speaks for itself." and 2: whether the defendant was in control of whatever it is that injured the plaintiff. and 3: whether the plaintiff did not contribute to the cause of his/her own injury. If yes to all 3, do not grant the directed verdict. Plaintiff may not win the case, but shouldn't lose on that motion. If no to any of the 3, grant the directed verdict unless there's other evidence of negligence such that res ipsa loquitur will not be required for plaintiff to win the case.

MBE Tip: Comparative vs Contributory Negligence

 x negligently injures y. Y sues x, but y was negligent as well:

Can y recover from x?

x: 99% fault, y: 1% fault Contributory negligence: no Partial comparative negligence: yes Pure comparative negligence: yes x: 55% fault, y: 45% fault Contributory negligence: no Partial comparative negligence: yes Pure comparative negligence: yes x: 45% fault, y: 55% fault Contributory negligence: no Partial comparative negligence: no Pure comparative negligence: yes Important Takeaways: Even the slightest bit of negligence (see example 1) will prevent plaintiff's recovery in a contributory negligence jurisdiction. Keep an eye out for the "last clear chance" rule, though, as that might provide a basis for plaintiff to recover even using contributory negligence. For comparative negligence, the important demarcation is 50%. If plaintiff's fault exceeds that (example 3) no recovery. If not (example 2) recovery. For pure comparative negligence (the default on the MBE) y will "recover" regardless of fault. See all 3 examples above. Recovery will often consist merely of deducting y's own fault from y's recovery. I've labeled the above as "partial comparative negligence" but you might see it written as "modified comparative negligence. All interchangeable.

Common MBE Trap: Strict Liability

Questions will present in Torts where the facts will allow for strict liability. Maybe someone is selling a dangerously defective product, or is engaged in an abnormally dangerous activity, or etc.

But the facts will also tell you how careful the person acted while doing so. They used "state of the art equipment," or "took all necessary precaution" or "acted with the utmost care," or etc. Important to remember that when strict liability is at issue none of that matters. You're liable regardless of the degree of care. One way to think about this test is that if the standard of care mattered, the test writers wouldn't be so in your face about how careful the person was. They like to hide what matters and highlight what doesn't. So when you see them showing their cards, consider if they are showing you a fake deck.

Abnormally Dangerous Activities

When I think of Torts, I think of a spectrum of fault. On one end of the spectrum are intentional torts; these require the most amount of fault. The tort of negligence falls in the middle of the spectrum, requiring less fault than intentional torts. And then strict liability offenses fall on the opposite end: no fault is required.

Strict liability will apply to, among other things, abnormally dangerous activities (formerly referred to as ultrahazardous activities). This means that in order to prove damages when injured by another's abnormally dangerous activity, it is not required as part of that proof to show that the person engaging in that activity intended any harm. Likewise, there's no requirement to prove that the person engaged in that activity did not act as a reasonably prudent person would have acted.

Because fault is not required to prove liability here, but is required to prove liability elsewhere, it's essential to understand what is and what is not an "abnormally dangerous activity."

First, the activity deemed abnormally dangerous must pose some physical, rather than merely economic, danger to persons or property. The importance of the adjective "abnormal" cannot be overstated: the activity cannot merely pose a danger towards others: the danger has to be of such a magnitude as to be deemed abnormal.

To determine whether an activity qualifies as abnormally dangerous for application of strict liability, each of the following factors should be considered. 

~ the existence of a high degree of risk of some harm to the person, land, or chattel of others

~ the likelihood that the resulting harm will be great

~ the inability to eliminate the risk by the exercise of reasonable care

~ the extent to which the activity is not a matter of common usage

~ inappropriateness of the activity to the place where it is carried on

~ the extent to which the value of the activity is outweighed by its dangerous attributes

Though these factors are the essential component of the analysis, it's worth remembering that as with the tort of negligence, the duty to avoid causing harm is only owed to foreseeable plaintiffs. Further, the defendant's activity must be both he actual and proximate cause of plaintiff's injury. 

Although contributory negligence isn't something to consider when analyzing strict liability, the defense of assumption of risk is always worth exploring. Comparative (as opposed to contributory) negligence is a tricky one: some states have reduced plaintiff's recovery in strict liability cases where plaintiff's own careless actions were partially to blame for plaintiff's injuries. 

Defamation: Standards of Fault

Defamation is often an entire course in law school so it's certainly a complicated tort. There's more to know for the MBE than will be written in this post but what's written in this post is likely the most important information you'll need to know for defamation on the exam. The type of fault that a plaintiff must prove will depend upon the status of the plaintiff.

Public Figures:

Some plaintiffs are public figures. A person becomes a public figure by achieving a pervasive fame or notoriety or by voluntarily assuming a central role in a specific public controversy. Those who voluntarily assume a central role in a specific public controversy are often described as "limited-purpose public figures."

Classifying the plaintiff as a public figure is important because to win a defamation case, public figures must prove a higher degree of fault. Specifically, public figures (limited and otherwise) must prove "actual malice" which is defined as knowledge that the statement made about plaintiff was false at the time the statement was made or a reckless disregard as to the falsity of the statement. This is a subjective test so it will not be helpful to ask whether a reasonable person would have or should have known that the statement was false. The mindset of the actual defendant here is what matters.

Private Figures:

Unlike with public figures, for a private person to prove defamation only negligence is required. In this context that means that a reasonable person would have or should have realized that the statement made by defendant was false. Unlike the test for a public figure, this is an objective test.  Negligence is only constitutionally required, however, if the statement is a matter of public concern. If the statement is not a matter of public concern then constitutional restrictions will not apply but state law might still require a showing of some degree of fault such as negligence.

Also worth noting is that although a private figure is required to prove negligence in situations involving a matter of public concern, it might still be in the interest of a private figure to go the step further and prove actual malice. Where negligence is proven, only actual injury damages (damages to reputation, etc.) are recoverable by plaintiff. But if actual malice is proven, damages may be presumed and punitive damages are likewise recoverable.

Res Ipsa Loquitur

Res ipsa loquitur directly translates to "the thing speaks for itself."  It doesn't always do as good a job of explaining itself and so I'll attempt to do that here.

Res ipsa loquitur should be considered when analyzing the tort of negligence; specifically, when addressing whether a duty of care has been breached. Generally, a breach occurs when defendant's conduct falls short of the standard of care required of any specific defendant.

There are a variety of theories that plaintiff might use to prove that defendant breached the duty of care required of that specific defendant. Perhaps defendant skewed from the custom that reasonable people generally adhere. It should be noted though that custom is not dispositive and it's especially important to note that just because defendant adhered to custom doesn't end the inquiry. After all, the custom itself might not be reasonable.

Another theory to prove breach is violation of a statute. Existence of a duty owed to plaintiff and the violation of that duty may be established by proof that defendant violated a statute. This is known as "negligence per se" and it merely establishes breach. Causation and damages must still be proven.

Sometimes, however, there is no direct evidence of an act that might be used to establish breach of the duty of care. Instead, circumstantial evidence of negligence is required. When there is no direct evidence, you should consider res ipsa loquitur.  It's a doctrine that allows for the inference of negligence from the very nature of the accident or injury. In other words, the fact that the act or injury occurred may in some circumstances tend to establish that a duty was breached.

There are specific elements to infer breach of duty based on res ipsa loquitur. Plaintiff must show that the accident causing the injury is a type that would not normally occur unless someone were negligent. The logic here is that because the injury would not normally have occurred unless someone had been negligent, it's reasonable to infer that someone was negligent since the injury did occur. Plaintiff must also show that the inferred negligence is attributable to defendant and this is often proven by the fact that defendant was in exclusive control of the instrumentality that caused the injury.

If res ipsa loquitur is established so that breach of the duty of care is inferred, plaintiff has then established a presumption of negligence so that no directed verdict may be granted for defendant on that issue. This isn't a win for plaintiff, though; the presumption or inference of negligence may still ultimately be rejected.

Dangerous Wild Animals

Animals show up in a variety of contexts in Torts on the MBE. Many of the strict liability questions that show up in Torts will involve dangerous defects in products, but you'll also be questioned on strict liability due to harm caused by animals. And the liability due to animals often turns on whether the animal is deemed to be wild or domestic. On the MBE it's safe to assume that domestic animals are common household pets and livestock.  Other animals are wild.  The distinction is, admittedly, not always easy.

Wild Animals: 

First to note is that an owner is strictly liable for reasonably foreseeable damage caused by trespass of the owner's wild animals. An owner is likewise liable to both licensees and invitees for injuries caused by wild animals, even if that wild animals is kept as a pet. The harm that results from the wild animal must, however, result from the kind of danger that is to be anticipated from the animal, which can include harm that results from fleeing from the perceived danger. In other words, the harm must result directly from the dangerous propensities of the wild animal.

Domestic Animals:

An owner is not strictly liable for injuries caused by domestic animals. An important exception to note is that an owner can be held strictly liable for injuries caused by domestic animals if the owner has knowledge of the dangerous propensities of the domestic animal and if those dangerous propensities are not common to the species. You should always ensure before finding liability for harm caused by a domestic animal that whatever dangerous propensities that animal has is not one that is common to the species.

It's important to note that strict liability will generally not be imposed in favor of trespassers who trespass on the land and are then injured by an animal (wild or domestic). But always consider liability based on intentional tort, which might be available even to trespassers.

The Attractive Nuisance Doctrine

The attractive nuisance doctrine is sure to show up in your torts class, and also pretty certain to show up on the bar exam. Most understand that it deals with trespassing children, but there are some particulars that if you don't know well enough can trip you up on a question.

The policy behind the doctrine is important: it allows for liability in situations where liability would not otherwise be allowable.  Generally, it's difficult for a trespasser to sue for injuries caused by the landowner or possessor of property. But if the trespasser is a child, it might not be so difficult.

The attractive nuisance doctrine requires the following:

A possessor of land has a dangerous artificial condition on the land.

and

The place where the condition exists is one in which the possessor knows or has reason to know that children are likely to trespass.

and

The possessor knows or has reason to know that the hazardous condition on the land involves a risk of death or serious bodily harm to any child who might trespass.

and

The children because of their age do not discover the dangerous condition or if they do discover it they do not appreciate the risk.

and

The benefit that the possessor receives from maintaining the condition as well as the burden that would be required to eliminate it are slight compared to the risk to children.

and

The possessor fails to exercise reasonable reasonable care to eliminate the danger or otherwise to protect the children.

So, lots of elements. And note that this rule requires that all elements are satisfied for the doctrine to apply. For example, if it is determined that the child was able to appreciate the risk of harm then even if all other elements are satisfied, the doctrine will not apply.

Defective Products

There are a variety of theories upon which one might sue for products liability. Among these theories are intent, negligence, strict liability, and breach of warranty. One commonality among every theory is that there must be proof that the product sold was defective and that it was defective when it left the defendant's control.  And because this element applies to all theories of products liability, it's important to understand well the rules regarding defective products.

There are three types of defects: manufacturing defects, design defects, and inadequate warnings.

Manufacturing Defects:  These defects occur when a product emerges from manufacturing different from and more dangerous than the products that were made properly. Importantly, you should note that with manufacturing defects, it's not required that all products within a line of products suffer from the defect; instead, only certain products within the line of products suffer from the defect, and those products are more dangerous that the products that are not defective.

Design Defects:  These defects occur when all products within a line of products have dangerous propensities that render them all defective based on a design defect in the product itself.

Inadequate Warnings: Along with design defects and manufacturing defects, a product might be defective as a result of the manufacturer's failure to provide adequate warnings as to the risk involved in using the product. Be careful with this one; if the risk is apparent to reasonable users then the manufacturer is not likely to face liability for failing to warn about such apparent dangers.

Along with understanding the various defects, you should also understand how each defect is proven. For manufacturing defects, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect. For a design defect, plaintiff must show that defendant could have made the product safer and that doing so would not have been economically or otherwise infeasible.  And for inadequate warnings it'll need to be shown that there was a lack of warning as to a non-apparent danger; for example, manufacturers are not likely to be held liable for not warning buyers about the dangers of a knife since the dangers are apparent and for the knives to perform their function requires a danger inherent to the product.

Trespassers

Lots of trespassers on the MBE.  And as such there are some rules to know so that you can apply them to questions testing the many different angles that the writers of the test can choose to focus on in the questions.

In these questions the trespasser will be the plaintiff suing the landowner for damages resulting from harm caused to the trespasser. Step one is to determine whether the trespasser is discovered or undiscovered.  If the trespasser is undiscovered (or unanticipated), then the landowner has a duty to refrain from willful or wanton misconduct.  In other words, not much of a burden here on the landowner to prevent harm to those who are entering the landowner's land without consent from the landowner and without knowledge as to their entering. No amount of negligence will suffice.

On the other hand, there will be times when a landowner knows that trespassers have been on his/her land in the past and these trespassers are known as discovered trespassers.  The burden, though still rather slight, is increased here since the landowner has knowledge of the entrance.  If the landowner maintains an artificial (as opposed to natural) condition on the land and if that condition is unlikely to be noticed by a discovered trespasser (for example, if it's concealed), then the landowner must either make that condition safe or warn the trespassers of the condition but only if the condition involves a risk of death or serious bodily harm to the trespasser.  If the landowner carries on dangerous activities on the land, then the landowner should exercise reasonable care in the exercise of such activity.

Lastly, the rules change if the trespasser is a child.  A landowner should exercise ordinary care to avoid foreseeable risk of harm to children caused by dangerous conditions on the property.  Note that here a distinction is generally not made between artificial and natural conditions as it was above.  The landowner here may be liable if the plaintiff can show that there was a dangerous condition on the property that the landowner should have been aware of, the owner knew or should have known that children frequent the area, the condition on the land is likely to cause injury, and the expense of remedying the situation, on balance, would be reasonable when compared to the magnitude of the risk posed.  This specific rule as it relates to trespassing children is known as the attractive nuisance doctrine.

MBE Fast Fact: Trespass to Chattel

Intentional torts tend to be relatively straight-forward but there is one aspect of trespass that can be counter-intuitive and so I thought it worth mentioning. Trespass to chattel is the intentional interference with the plaintiff's chattel resulting in damages. The intent requirement can cause some problems here. For this purpose, intent consists of a desire or knowledge that the chattel will be involved without regard to whether the defendant actually knows that the chattel belongs to the plaintiff, or that the plaintiff's rights are being violated.

In other words, if defendant takes a coat thinking that it belongs to the defendant but in fact belongs to plaintiff, that mistake alone is not enough for the defendant to claim that the defendant did not have the requisite intent to commit this tort. Defendant intended to take the coat, and the intent to take the coat is enough. It's worth noting that these same types of questions can come up in questions testing trespass to land. If someone walks onto the property of another thinking that the land is his own, the requisite intent for trespass to land is still satisfied if there was an intent to enter the land.

MBE Fast Fact: Recapture of Chattels

Within the area of intentional torts, the topic of recapture of chattels tends to cause some difficulty. And with good reason: it's somewhat of a gray area of law with different outlines stating different types of analysis. Here's what should be known for purposes of the MBE:

It's important when analyzing recapture of chattels to determine exactly how the chattels came into the possession of the person from whom the chattel is now being recaptured. Assume that X is the owner of the chattel, and that Y is now in possession of X's chattel.

If Y's possession of the chattel began lawfully, then X may only use peaceful means to recapture the chattel. To the contrary, X may only use force to recapture the chattel from Y if X is in hot pursuit of Y, and if Y has obtained the chattel unlawfully.

How might this play out in a question. Assume that Y has come into possession of X's chattel lawfully. For example, assume X has given a piece of property to Y, and that now Y refuses to return it. If X attempts to recapture the property and uses force in doing so, Y may have a claim against X for battery, even though X was merely attempting to recapture property that belonged to X. This is because the use of force on the part of X would not be allowed in such a situation, so that if X claimed recapture of chattels as a defense to a claim of battery, the defense would fail.

MBE Fast Fact: Interference with Business Relations

A tort that shows up with some regularity on the MBE is the tort of interference with business relations. As is the case with all intentional torts, the key to answering questions correctly that are testing this tort is to know the elements of the tort. They are as follows:

--A valid contractual relationship between plaintiff and a third party, or a valid business expectancy of plaintiff with the third part

--Defendant's knowledge of that relationship or expectancy

--Intentional interference of the relationship or expectancy by defendant that induces a breach of the relationship or expectancy

--Damages to plaintiff.

But the analysis does not end there. Defendant's conduct may be privileged where it is a proper attempt to obtain business for defendant. Defendant's conduct is far more likely to be deemed privileged in this respect if the conduct is one that merely interferes with plaintiff's expectancy of business and not an already-existing business relationship. In addition, the analysis should run in favor of finding a privilege if defendant used commercially acceptable means of persuasion rather than illegal or threatening tactics, or if defendant is a competitor of plaintiff seeking the same prospective clients. It's also important to note that if the third party has contacted defendant seeking business advice, and the defendant provides such advice, providing such advice is unlikely to be deemed actionable by plaintiff as an interference of plaintiff's relationship with the third party, even if the the advice ultimately leads to the third party forming a business relationship with defendant rather than plaintiff.

MBE Fast Fact: Wrongful Birth vs Wrongful Life

Let's be sure to distinguish these concepts as they do show up on the MBE:

In short, wrongful life means the the child sues the mother or others for being born. Wrongful birth, on the other hand, means the mother sues others (very often a doctor who fails to inform the mother of the potential for a disability) for being burdened monetarily with a disabled child. Wrongful birth cases are nearly always medical malpractice tort cases.

For purposes of the MBE, it's most important to remember the following: Most states reject a claim of wrongful life, and of the few states that do permit it, some would limit recovery to the special damages attributable to the disability.

In contrast, a cause of action for wrongful birth will be permitted in many states. Though allowable, damages will generally be limited to expenses incurred as a result of the child's disabilities.

Defenses to Negligence

The default defense to negligence on the MBE is pure comparative negligence. But often enough the questions will direct you to apply a different standard, so it's important to understand how the analysis changes when the standard changes. Three defenses you'll want to know are pure comparative negligence, modified (or partial) comparative negligence, and contributory negligence.

Let's assume the following fact situation in discussing the analysis of each. Plaintiff ("P") is injured by 3 defendants "X," "Y," and "Z." The fault (in dollar amount) of plaintiff's injury is allocated as follows:

P's fault is valued at $50,000

X's fault is valued at $30,000

Y's fault is valued at $20,000

Z's fault is valued at $10,000

Total: $110,000


Contributory Negligence: If directed in any given question to apply contributory negligence, the analysis is very straight-forward. If plaintiff is determined to have been at fault (by even the slightest amount), then plaintiff is prevented from recovering anything from any other defendant. In our example, plaintiff is $50,000 at fault, so plaintiff will recover nothing. Note that plaintiff can then raise his own defense of the "last clear chance doctrine," claiming that defendant(s) had the last clear chance to avoid the act that caused the injury. If proven, then the fact that plaintiff was contributorily negligent will not entirely prevent plaintiff from recovering.

Modified (partial) comparative negligence: Here the analysis changes. Plaintiff can recover provided that plaintiff was less than 50% at fault when taking the total dollar amount of damages into account. Here, plaintiff was determined to have been $50,000 at fault, and total damages were valued at $110,000. Therefore plaintiff was 45% percent at fault (50,000/110,000), and because that is less than 50%, plaintiff will recover for his injuries. In determining the amount of recovery, subtract the amount of damages allocated to plaintiff ($50,000) from the total amount ($110,000). Plaintiff will therefore recover $60,000. Plaintiff can recover this amount from either x, y, or z (as per the default rule of joint and several liability), and then each defendant will have a right of contribution from the other defendants if any defendant pays an amount that exceeds his own fault. So, for example, if plaintiff recovers the $60,000 from z, z will have a right of contribution of $50,000 from x and y.

Pure Comparative Negligence: This is the standard to apply if you are not told to apply otherwise. The analysis is the same as in modified comparative negligence, except that under pure comparative negligence, plaintiff can recover even if plaintiff is determined to have been more than 50% at fault. So, assume that instead of damages valued at $110,000, the total damages were valued at $90,000 and further assume that plaintiff was still determined to have contributed $50,000 to his own injuries. In that case plaintiff would be deemed 56% at fault (50,000/90,000). Even so, plaintiff would be able to recover for the remaining fault allocated to defendant(s). In this example, plaintiff would be able to recover $40,000, and once again, assuming the default rule of joint and several liability applies, plaintiff may choose among x, y, or z, when recovering that amount, and then each defendant will have a right of contribution against the others.


**Note:: If told not to apply joint and several liability, the analysis changes slightly. Plaintiff can no longer recover the full amount from any given defendant, and can only recover an amount from a defendant equal to that defendant's fault.

MBE Fast Fact: Actual Cause

It's likely you'll see questions on the MBE in which more than one person causes an injury to a third party, and you'll be asked to determine the liability of the parties causing the injury. This is an issue of causation, specifically actual causation. The analysis depends upon whether two (or more) parties together jointly cause the injury or instead two (or more) parties act, but only one of the parties causes the injury.

Let's examine the first scenario: Let's say x and y act jointly and cause an injury to z. The question to ask is whether x acting alone or y acting alone would have been sufficient to causes the injury to z. If, for example, x acting alone would have been sufficient to cause the injury to z, then x's conduct is the actual cause of the injury to z provided x's conduct was a substantial factor in causing the injury to z. The same analysis applies in determining whether y's conduct is the actual cause of z's injury.

A second scenario involves two acts, but where only one of the acts causes an injury. So here assume that x and y are once again involved in conduct, and z is once again injured. But here, rather than x and y jointly causing the injury to z, only one (x or y) causes the injury, but it is unknown which of the two is the cause. Here, the burden of proof shifts to the defendants (x and y) and each must show that his negligence was not the actual cause of the injury to plaintiff (z).