You’re staring at your Torts outline. Again. Hundreds of pages of cases, elements, exceptions, and sub-exceptions. You know you need to memorize this material for the MBE, but where do you even start? Torts accounts for roughly 25% of the MBE — that’s about 50 questions on test day — and the subject sprawls across intentional torts, negligence, strict liability, and products liability. Let’s break down exactly what you need to know and how to organize your Torts prep so you walk into the exam with confidence.

What Makes Torts Different on the MBE

Torts questions test your ability to spot issues quickly and apply elements precisely. The examiners love to mix fact patterns that trigger multiple torts simultaneously or that require you to distinguish between similar claims. You’ll see a plaintiff who might have claims for both battery and assault, or a negligence question where the real issue is whether a duty existed in the first place.

The key to MBE Torts success isn’t reading more cases or understanding the policy rationale behind each doctrine. It’s knowing the elements cold. When you read a fact pattern, you should immediately think: “Battery requires an act, intent to cause harmful or offensive contact, and actual contact. Do I have all three here?”

Intentional Torts: The Foundation

Start with the intentional torts because they’re the most rules-based and the easiest to master through memorization. You need to know the elements for battery, assault, false imprisonment, intentional infliction of emotional distress, and the property torts: trespass to land, trespass to chattels, and conversion.

Here’s what trips up most students: Battery doesn’t require intent to harm. It only requires intent to make contact. If someone playfully pushes you off a dock as a joke and you break your arm, that’s battery. The defendant intended the contact — that’s enough. The same principle applies to assault: the plaintiff must have reasonable apprehension of imminent harmful or offensive contact. Future threats don’t count. “I’m going to punch you next week” isn’t assault.

Transferred intent is tested repeatedly. If the defendant intends to commit battery against Person A but hits Person B instead, the intent transfers. If the defendant intends assault but actually makes contact, that’s battery — the intent transfers between the five trespass torts (battery, assault, false imprisonment, trespass to land, and trespass to chattels).

Don’t sleep on false imprisonment. The plaintiff must be confined to a bounded area with no reasonable means of escape. If there’s an unlocked door the plaintiff knows about, there’s no confinement. Moral pressure doesn’t count. The shopkeeper’s privilege is a defense: a merchant can detain a suspected shoplifter if they have reasonable belief, use reasonable manner, and detain for only a reasonable time.

For intentional infliction of emotional distress, the conduct must be “extreme and outrageous” — exceeding all bounds of decency tolerated in civilized society. Mere insults don’t cut it. The MBE loves testing bystander recovery: a close family member present at the scene can recover if they suffer severe emotional distress and the defendant knew they were present.

Negligence: Where the MBE Gets Complicated

Negligence is the heart of Torts on the MBE. Every negligence claim requires four elements: duty, breach, causation (actual and proximate), and damages. Miss one element and the claim fails. The examiners know this and will write fact patterns where one element is clearly absent.

Duty questions are everywhere. The general rule is straightforward: everyone owes a duty to exercise reasonable care to avoid foreseeable risks to foreseeable plaintiffs. But the exceptions matter more. There’s generally no duty to act affirmatively to rescue or protect someone else. The classic example: you watch someone drown and do nothing. No liability. But if you created the peril, or if a special relationship exists (common carrier and passenger, innkeeper and guest, business and invitee), then a duty arises.

The unforeseeable plaintiff issue comes up often. Under the Cardozo majority view, you owe a duty only to plaintiffs within the zone of danger — those who could foreseeably be harmed by your conduct. If you negligently knock over a package and it explodes, injuring someone far away who had no reason to be in the danger zone, you may not owe that person a duty.

Standard of care varies by defendant. The default is the reasonably prudent person under the same circumstances. Children are held to the standard of a child of similar age, intelligence, and experience — unless they’re engaged in an adult activity like driving, in which case they’re held to the adult standard. Professionals (doctors, lawyers, architects) must meet the standard of a reasonably competent member of their profession. A person with a physical disability is held to the standard of a reasonably prudent person with that same disability. But mental disability? That doesn’t lower the standard. The law holds mentally disabled defendants to the objective reasonably prudent person standard.

Negligence per se is a shortcut to proving duty and breach. If the defendant violated a statute, and the plaintiff was in the class of persons the statute was designed to protect, and the harm was the type the statute was designed to prevent, then the violation establishes duty and breach. You still have to prove causation and damages. Excuses exist: compliance was impossible or would have been more dangerous than noncompliance.

Causation: Actual and Proximate

Causation splits into two requirements. Actual causation (cause-in-fact) asks: but for the defendant’s conduct, would the harm have occurred? If the answer is no, you have actual causation. In cases with multiple sufficient causes, courts use the substantial factor test.

Proximate causation (legal cause) limits liability to harms that were foreseeable. The defendant is liable for the natural and probable consequences of their negligent act. Intervening causes can break the chain of causation, but only if they’re unforeseeable. A negligent doctor treating the plaintiff’s injuries? Foreseeable. A meteor strike? Not foreseeable.

The eggshell plaintiff rule applies to the extent of harm, not the type. You take your plaintiff as you find them. If your negligent act causes a minor bump to someone with a skull condition and they die, you’re liable for the death — even though you couldn’t foresee the severity. But the general type of harm must still be foreseeable.

Landowner Liability and Special Duty Rules

Landowner duty questions appear frequently. Traditionally, the duty owed depended on the entrant’s status. Trespassers are owed no duty except to avoid willful or wanton conduct. Licensees (social guests) are owed a duty to warn of known hidden dangers. Invitees (business visitors or those entering for the owner’s purpose) are owed a duty of reasonable care, including inspection for dangers.

Many jurisdictions have abolished these categories and apply a general reasonable care standard, but the MBE still tests the traditional approach. Know both. The examiners will signal which approach to use in the call of the question or the answer choices.

Attractive nuisance doctrine protects child trespassers in limited circumstances: the landowner must know children are likely to trespass, the condition poses an unreasonable risk of death or serious injury that children won’t appreciate, and the burden of eliminating the danger is slight compared to the risk.

Defenses You Must Know Cold

Defenses can make or break an MBE question. Contributory negligence (minority rule) bars recovery entirely if the plaintiff was even 1% at fault. Pure comparative negligence reduces the plaintiff’s recovery by their percentage of fault. Modified comparative negligence bars recovery if the plaintiff is 50% or more at fault (or more than 50%, depending on the jurisdiction).

Assumption of risk comes in two forms. Express assumption (signing a waiver) is generally valid unless against public policy. Implied assumption requires that the plaintiff knew of the risk and voluntarily proceeded anyway. The plaintiff must have actual knowledge and appreciation of the specific risk.

For intentional torts, consent is a complete defense. Consent can be express or implied by custom, conduct, or relationship. The defendant cannot exceed the scope of consent. Consent obtained by fraud as to an essential matter is invalid.

Self-defense permits reasonable force to defend against imminent unlawful harm. The force must be proportional — deadly force only in response to threat of death or serious bodily harm. The privilege ends when the threat ends. An initial aggressor loses the privilege unless they withdraw and communicate withdrawal. Defense of others follows the same rules, and a reasonable mistake as to the necessity is permitted.

Defense of property allows reasonable force to prevent a tort against property, but the owner must first request the intruder stop (unless futile or dangerous). Deadly force is never permitted solely to defend property. Spring guns and mechanical devices causing serious harm are not allowed.

Private necessity allows interference with another’s property to prevent greater harm to oneself. It’s an incomplete privilege: the defendant isn’t liable for trespass but must pay for actual damages caused. Public necessity (preventing significant public harm) is a complete privilege — no liability for damages.

Strict Liability and Products Liability

Strict liability means liability without fault. You don’t need to prove negligence — just causation and damages. The MBE tests two main areas: abnormally dangerous activities and products liability.

An activity is abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a matter of common usage in the community. Blasting with explosives is the classic example. The defendant is strictly liable for the type of harm that makes the activity abnormally dangerous.

Products liability claims can proceed under negligence, strict liability, or breach of warranty theories. Under strict liability, a commercial supplier is liable if they sell a defective product that causes injury. Three types of defects: manufacturing defects (product differs from design), design defects (the design itself is unreasonably dangerous), and warning defects (failure to provide adequate warnings about non-obvious risks).

For design defects, most jurisdictions use the risk-utility test: would a reasonable manufacturer have adopted a safer alternative design? Some states use the consumer expectation test: did the product fail to perform as safely as an ordinary consumer would expect?

Defenses in strict products liability include product misuse (if unforeseeable) and assumption of risk. Contributory negligence is generally not a defense to strict liability claims, but comparative fault principles may apply depending on the jurisdiction.

Damages and Special Harm Rules

You must prove actual damages in negligence. Nominal damages aren’t available. For intentional torts like trespass to land, nominal damages suffice even without actual harm.

Compensatory damages include economic losses (medical expenses, lost wages, property damage) and non-economic losses (pain and suffering, emotional distress, loss of consortium). Future damages must be proven with reasonable certainty.

Punitive damages are available when the defendant’s conduct was willful, wanton, or malicious. They’re meant to punish and deter, not compensate. The amount must bear a reasonable relationship to the actual harm.

The collateral source rule prevents reducing the plaintiff’s recovery by amounts received from other sources (insurance, disability benefits). The defendant pays full damages even if the plaintiff was partially compensated elsewhere.

How to Structure Your Torts Study

Here’s the method that works: organize every rule by its elements. When you review battery, don’t read paragraphs about the history of tort law. Write out: (1) act by defendant, (2) intent to cause harmful or offensive contact or apprehension thereof, (3) harmful or offensive contact results. That’s it. Do the same for every single rule.

Then drill yourself with practice questions. Read the fact pattern. Identify which tort is implicated. Recite the elements. Check each element against the facts. If one element is missing, the claim fails. This is exactly how the MBE tests Torts — by hiding missing elements in complex fact patterns.

The students who struggle with Torts are the ones who “kind of know” the rules. They can recognize a battery question, but they can’t recite the elements without looking. On the MBE, you don’t have time to reason through each element from first principles. You need instant recall.

If you want all 88 Torts rules organized for exactly this kind of active recall, FlashTables covers the complete NCBE subject matter outline in a two-column format designed for memorization. Each rule is stripped down to its essential elements with no filler — just the law you need to know for test day.

Your Torts Memorization Checklist

Before you move on from Torts, make sure you can recite from memory:

Torts is memorization-heavy, but that’s actually good news. Unlike subjects that require more legal reasoning, Torts rewards the student who puts in the time to memorize elements and apply them mechanically. The fact patterns will be complicated, but the law is knowable. Master the elements, practice applying them under timed conditions, and you’ll turn Torts into one of your strongest MBE subjects.