Torts on the MEE: What to Know and How to Practice

Negligence dominates Torts on the MEE. You should expect to analyze duty, breach, causation (both actual and proximate), and damages in nearly every Torts essay. Special duty rules for landowners, professionals, and common carriers appear frequently. Comparative fault and contributory negligence are common wrinkles that change the damages analysis.

Products liability is the second most common testing area. MEE questions typically involve a defective product causing injury, and you need to analyze all three theories: manufacturing defect, design defect (risk-utility or consumer expectation test), and failure to warn. Know who qualifies as a proper defendant (manufacturer, retailer, distributor) and the role of strict liability versus negligence in products cases.

Intentional torts (battery, assault, false imprisonment, intentional infliction of emotional distress) and defamation round out the subject. Defamation questions test the distinction between public and private figures, the actual malice standard from New York Times v. Sullivan for public figures versus negligence for private plaintiffs, and available defenses like truth and privilege. Vicarious liability and respondeat superior often appear as secondary issues linking a defendant to another party's conduct. Joint and several liability, contribution, and indemnity among multiple tortfeasors are also common testing points.

Start by identifying every potential defendant and every potential theory of liability. A single Torts fact pattern often supports multiple claims: the same conduct might give rise to both negligence and an intentional tort, or both a direct liability claim and a vicarious liability claim. Graders reward breadth of issue coverage.

For negligence, work through each element in order and apply the specific facts. The application section is where most points are earned. Do not state "duty was breached" and move on. Explain what a reasonable person would have done and how the defendant's conduct fell short. For causation, distinguish between but-for causation and proximate cause, and address foreseeability when the facts raise it.

Treating all elements equally. When causation and damages are obvious from the facts, do not spend equal time on every element of negligence. Allocate your time based on what the facts emphasize. If the facts describe the defendant's conduct in detail, the graders are testing duty and breach. Write a thorough duty and breach analysis and handle causation and damages more briefly.

Ignoring negligence per se. When the fact pattern includes a statute or regulation and the defendant violates it, you should analyze negligence per se. This establishes duty and breach automatically if the plaintiff is within the protected class and suffered the protected harm. Many examinees skip this doctrine and analyze duty and breach under the general reasonable person standard instead, missing the more precise analytical tool.

Forgetting comparative fault. If the facts suggest the plaintiff was also negligent, you must address comparative fault (or contributory negligence in the few remaining contributory negligence jurisdictions). Under pure comparative fault, the plaintiff's recovery is reduced by their percentage of fault. Under modified comparative fault, the plaintiff is barred if their fault exceeds a threshold (typically 50% or 51%). State which standard you are applying.

Missing vicarious liability. When the defendant who caused the injury is an employee or agent, always check whether the employer or principal is also liable under respondeat superior. This requires showing that the employee was acting within the scope of employment. Independent contractor status generally shields the hiring party from vicarious liability, but exceptions exist for inherently dangerous activities.

Identify every defendant and every theory. Torts essays reward breadth. For each defendant, consider direct negligence, negligence per se, strict liability, products liability, vicarious liability, and any intentional tort the facts might support. A single set of facts can support four or five theories against multiple defendants. Graders award separate points for each theory.

Apply facts, not just rules. The biggest scoring gap between strong and weak Torts answers is in the application section. Do not write "the defendant breached the duty of care." Write "a reasonable person would have inspected the premises before the event, and the defendant failed to do so despite having three weeks' notice of the hazard." Use the specific facts from the fact pattern in your analysis.

Know the products liability theories. If the fact pattern involves a defective product, analyze all three theories: manufacturing defect (the product deviated from its intended design), design defect (the risk-utility test or consumer expectation test), and failure to warn (inadequate warnings or instructions). Each theory has its own elements and each earns separate points.

Address damages specifically. Do not write "plaintiff suffered damages." State what the damages are: medical expenses, lost wages, pain and suffering, property damage. If the facts support punitive damages (intentional or egregious conduct), address whether they are available. Specific damages analysis earns more points than a conclusory statement.