Strict liability trips up a lot of bar takers — not because the rules are complicated, but because students mix them up with negligence and walk into the MBE completely unprepared for how the examiners test them.

Let’s fix that.

Strict liability means a defendant can be held liable for harm caused without any showing of fault. No negligence. No intent. The plaintiff doesn’t need to prove the defendant did anything wrong — only that the defendant engaged in a certain type of activity or sold a certain type of product, and that activity or product caused the harm. That’s a fundamentally different framework from negligence, and the MBE will test whether you actually understand the distinction.

There are two main categories you need to know cold: liability for abnormally dangerous activities and products liability. Let’s break both down.

Strict Liability for Abnormally Dangerous Activities

Some activities are so inherently risky that courts impose liability regardless of how carefully the defendant acted. This is the classic common-law strict liability rule, and it shows up on the MBE more than you might expect.

An abnormally dangerous activity is one that (1) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, (2) is not a matter of common usage in the community, and (3) the risk cannot be eliminated by the exercise of reasonable care. Courts applying the Restatement approach also consider factors like whether the activity is inappropriate for the location and whether its value to the community is outweighed by its dangerous attributes.

Classic examples: blasting with explosives, storing large quantities of flammable liquids in a residential area, crop dusting, and keeping wild animals.

Here’s a quick hypothetical to make this concrete:

A demolition company uses dynamite to clear land in a suburban neighborhood. Despite taking every reasonable precaution, the blast sends debris flying into a neighboring property, destroying a fence and injuring the homeowner. The homeowner sues.

The demolition company is strictly liable. It doesn’t matter that they followed industry best practices. Blasting with explosives is an abnormally dangerous activity. The plaintiff only needs to show the activity caused the harm.

What Defenses Still Apply?

Here’s where students get tripped up. Even under strict liability, some defenses survive. Contributory negligence is generally not a defense to strict liability in traditional common law jurisdictions — but assumption of risk is. If the plaintiff voluntarily and knowingly encountered the specific risk that made the activity abnormally dangerous, that can defeat recovery.

Also important: the harm must result from the kind of risk that made the activity abnormally dangerous in the first place. If a blasting crew’s truck runs a red light on the way to the job site and injures someone, that’s a negligence claim — not a strict liability one. The connection between the dangerous character of the activity and the harm matters.

Products Liability on the Bar Exam

Products liability is where most of the MBE action is. You need to understand three distinct theories of recovery, because the examiners love to test which one applies on a given set of facts.

Negligence-Based Products Liability

A manufacturer owes a duty of reasonable care to all foreseeable users of its product. This includes designing the product safely, manufacturing it without defects, and providing adequate warnings. Unlike strict liability, a plaintiff suing under negligence must show the defendant failed to exercise reasonable care — not just that the product was defective.

Implied Warranty of Merchantability

Under the implied warranty of merchantability, a seller who is a merchant dealing in goods of that kind impliedly warrants that the goods are fit for their ordinary purpose. This is a contract-based theory, but it bleeds into tort on the MBE. Watch for privity issues — some jurisdictions have eliminated the privity requirement for personal injury claims.

Strict Liability in Tort — The Big One

This is the theory that dominates MBE products liability questions. Under Restatement (Second) of Torts § 402A, a seller who sells a product in a defective condition unreasonably dangerous to the user is strictly liable for physical harm caused by the defect. The elements are:

  1. The defendant is a commercial seller or manufacturer
  2. The product was sold in a defective condition
  3. The defect made the product unreasonably dangerous
  4. The defect existed when it left the defendant’s control
  5. The plaintiff suffered physical harm
  6. The defect caused that harm

No negligence required. No privity required. The plaintiff doesn’t need to identify exactly how the defect occurred — just that it existed.

The Three Types of Product Defects

This is the breakdown you absolutely must memorize.

Manufacturing defects occur when a specific product deviates from the intended design. The product that injured the plaintiff is different from every other unit that came off the line. Think: a bottle of soda with a piece of glass inside, or a car with a faulty brake caliper that wasn’t installed correctly.

Design defects exist when the entire product line is flawed because of how it was designed. Every unit is made exactly as intended — but the design itself is unreasonably dangerous. Courts use two tests: the consumer expectations test (would an ordinary consumer expect this danger?) and the risk-utility test (do the risks of the design outweigh its benefits?). The MBE tends to favor the risk-utility analysis.

Warning defects — sometimes called failure to warn — arise when a product carries a risk that is not obvious to ordinary users and the manufacturer fails to provide adequate instructions or warnings. Even a well-designed, properly manufactured product can give rise to liability if the user wasn’t warned of a non-obvious danger.

Who Can Be Strictly Liable?

Any commercial seller in the distribution chain can be held strictly liable — the manufacturer, a distributor, and the retail seller. The key word is commercial. A private individual who sells their used car isn’t strictly liable under products liability. Neither is a company that sells a product outside its normal line of business.

Defenses in Products Liability

Several defenses can reduce or eliminate recovery:

A Quick Hypothetical to Tie It Together

A consumer purchases a blender from a retail store. The blender’s blade assembly has a hidden crack from the manufacturing process. While using it normally, the blade shatters and injures the consumer’s hand. The consumer sues the retailer.

The consumer doesn’t need to prove the retailer was careless. The retailer is a commercial seller in the distribution chain. The product had a manufacturing defect when it left the manufacturer’s control. The defect caused physical harm. Strict liability attaches — to both the retailer and the manufacturer.

FlashTables

FlashTables are professionally formatted two-column PDF rule tables covering all seven MBE subjects — 704 rules total, organized by the official NCBE Subject Matter Outline. The manufacturing defect, design defect, and failure-to-warn rules, along with the abnormally dangerous activity framework, are all laid out side-by-side in the Torts table, making them easy to drill and compare. Whether you’re a law student locking in black-letter Torts for your outline or a bar taker running through active recall the week before the MBE, the tables give you every rule in a format built for fast, efficient review. You can find them at getflashtables.com.

Key Takeaways: What to Memorize for Strict Liability MBE Questions

Strict liability questions on the MBE are very winnable once you stop thinking about them through a negligence lens. The rules are clean. The elements are testable. Get them locked in before exam day.