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Good Essay Example 1 (July 2017 Torts)

This lesson presents a real, good response to the July 2017 MEE Torts question . First, read the essay, then listen to the analysis below.

Download the essay as a PDF.

Good Essay 1

Directed verdict

1.   Fireworks display is an abnormally dangerous activity

The judge was incorrect, and running fireworks displays is an abnormally dangerous activity. The key issue is the extent of the harm imposed by fireworks and whether it can be mitigated by exercising care.

Under tort law, strict liability is imposed on those who cause harm while engaging in an abnormally dangerous activity. Abnormally dangerous activities generally include such activities as blasting dynamite or transporting extremely hazardous materials. The factors used to determine whether a particular activity is abnormally dangerous include: 1) the severity of the harm caused by the activity; 2) whether the location of the activity is appropriate; 3) the benefit to society or to the community of engaging in the activity and whether it outweighs the harm; and 4) whether harm caused by the activity can be minimized by exercising care.

Here, the location of the activity--in the middle of the lake on the fourth of July--seems appropriate. Fireworks also bring a significant benefit to society by providing entertainment to a huge amount of people, particular for festive occasions such as the Fourth of July. However, the harm caused by fireworks is great; nationally, fireworks cause 9,000 injuries and 5 deaths per year. Furthermore, the plaintiffs established that fireworks can still misfire even with careful use by experts. While there are factors weighing in each direction, the fact that fireworks are explosive devices with a potential to cause harm including death even when exercising care cuts in favor of considering the use of fireworks to be an abnormally dangerous activity. And while fireworks are enjoyable, they do not provide the community with a necessary function. The judge was incorrect, and fireworks displays, because they are an abnormally dangerous activity, should subject defendants to strict liability.

2.   A reasonable jury could conclude that the conduct of the fireworks company was negligent

The judge was also incorrect as to the second point; a reasonable jury could find that the fireworks company's conduct was negligent. The issue is whether the company breached its duty in the placement of the fireworks.

A prima facie showing of negligence requires duty, breach, actual and proximate causation, and damages. A defendant has breached its duty of care if it did not exercise the care that a reasonable person would have under similar circumstances.

Here, the company owed a duty of care to individuals who might be harmed by its fireworks display. The plaintiffs also showed cause, at least with respect to the wife's injury (the mortar hit her dock and hit her with flaming debris), and damages (she was severely injured). A reasonable jury may have found that the standard of care was determined by the applicable fireworks statute requiring a 500 foot safety zone around the launching site--though the statute does not prove a breach as it not apply to water launches, in the absence of other regulations, this is reasonable guidance. There is no indication that the defendants proved an industry standard for water launches that would have weighed in the opposite direction (though it would not have been dispositive). It seems that the company could have feasibly taken further measures to prevent or mitigate the injury, such as changing the launch location or warning all residents of the lake to stay back from the shoreline. Based on the evidence available, a reasonable jury could gave found that launching fireworks from a site that was under 500 feet from four different land or dock locations on the lake was a breach of the company's duty of care.

3.   The misfiring mortar was the proximate cause of the husband's injuries

The issue is whether, if the company is determined to have breached the standard of care, the husband's injury was a foreseeable consequence of the company's breach. A showing of both actual and proximate causation is necessary for a finding of negligence. Actual cause is "but-for" cause--the injury would not have occurred but for the actions constituting the breach. Proximate cause, on the other hand, means that the injury was the natural and probable consequence of the action. Where the resulting injury is caused indirectly, the harm must have been foreseeable. Generally, harm caused to rescuers of those who have been injured is considered foreseeable.

Here, the husband was inside the house, and saw his wife get injured by the mortar. He became injured after he ran out to help her, tripping on the rug, falling down the stairs, and sustaining a fracture. It is the natural and probable consequence of setting off fireworks too close to shore that someone on shore might get injured, and it is foreseeable that the rush to aid an injured person might cause additional injuries. It is not necessary that the particular injury of a fracture due to falling down a flight of stairs cold specifically be anticipated--this injury is of the kind that is to be expected from those who rush to help someone who has been injured by fireworks. Therefore, the mortar was the proximate cause.

4.   The homeowners association can be held liable for the fireworks company's acts or omissions

The homeowners association can be held liable. The issue is whether the homeowners association expressly authorized the tortious action here, or whether the action was committed in the scope of employment with a desire to serve the principle. Principals are liable for the torts of their agents if they expressly authorize them or if the torts are committed in the scope of employment with a desire to service the principle. A principal/agent relationship exists when there is assent to the relationship, the activity engaged in by the agent benefits the principal, and the principal has control over the agent. Even where the control element is not met, and the company is considered an independent contractor, there is still liability for torts stemming from inherently dangerous activities. This is an exception from the general rule that principals are not liable for torts of an independent contractor.

Held liable if fireworks company was an agent and if vicarious lability applies: expressly authorized or scope of employment/desire to service. Here the fireworks company was a contractor, and it appears that the association did not have control over the manner of the company's performance. However, the homeowners association can still be held liable because, as explained above, fireworks are an bnormally dangerous activity. Therefore, the judge was wrong and the association is liable.

Analysis of the Sample Essay

Okay. So we are going to walk through an actual test taker's answer to a torts MEE question from the July 2017 bar exam, and this answer is provided by New York. So this test taker took the bar exam in New York. I'm going to discuss the strengths and weaknesses of this answer.

But first, remember that each jurisdiction, that is, each state, grades the MEEs for their respective jurisdiction. So what one state identifies as a very good or strong essay answer may not necessarily translate as a very good or strong essay answer in another state. Each state uses the model answers provided by the National Conference of Bar Examiners for the MEEs. But each state has its own graders, and each state's graders have some flexibility in allocating points to their test takers.

So when you compare your answer to an old answer, focus more on whether your answer picks up the general rules and analysis identified in the model answer. If so, you are likely going to score really well on that essay. But know that there may be some problems with model answers. For instance, the rules may not always be correct, or the analysis may not be as robust or as effective as it can be.

All right. Let's take a look at the model answer provided by New York for the July 2017 MEE. Right off the bat, you can see that the model answer is visually appealing, that is, you can see that the test taker didn't just write her answer in one giant paragraph. Rather, she used multiple short paragraphs, which likely helped the grader better follow the test taker's answer.

One other effective technique that the test taker did to help the grader better follow her answer was that she included the transition phrase "Here" every time she moved into her application. You can also quickly see that this test taker also chose to format her answer in a CRAC, and the first C of her CRAC was a clear, one-sentence heading at the start of each of the four separate subparts to the question.

You will also notice that even though the test taker wrote her answer as a CRAC, she still wrote a sentence within her rule paragraph, where she clearly identified the issue for each subpart. That's fine. It wasn't necessary, but it's fine. It showed the reader that she understood what each subpart was testing.

Overall, this essay answer was very well organized and it included clear rules and effective application. There were some grammar issues and misspelled words here and there, but they did not take away from the overall strength of the answer. Let's quickly look at each subpart.

Subpart 1 is likely the strongest part of the test taker's answer. She provided a clear and confident conclusion and provided some really nice substantive rules. She started with a broad rule for abnormally dangerous activities, and then she effectively funneled down to more specific rules relating to what a court may consider in determining whether an activity is abnormally dangerous.

So the rule paragraph was quite good for subpart 1, although I do think that the test taker could have done a better job of talking about strict liability. She referenced abnormally dangerous activities as falling under the concept of strict liability, but she didn't fully or directly discuss what strict liability is.

However, the application for subpart 1 was very strong. The test taker effectively used the various statistics included in the facts to support her conclusion that the fireworks display imposed substantial risk of harm, no matter how much care was exercised. She also acknowledged the counterargument, that is, that fireworks can be popular activities, particularly on the 4th of July.

Subpart 2 was also strong. Like subpart 1, the test taker had a clear and confident conclusion. She clearly identified the elements for negligence and she effectively used the facts relating to the location of the fireworks launch to establish that the fireworks company breached a duty of care.

She also did not forget to address the causation and damages elements for negligence, which I imagine some test takers might have done since they may have been so focused on breach of duty. Here, the test taker quickly discussed causation and damages, which likely increased her score for this subpart.

A potential negative in this subpart is that the test taker did not directly address that an unexcused violation of a statutory standard can establish a breach of duty, but that compliance with a statutory standard does not necessarily imply no breach of duty.

All right. Let's look at subpart 3. The test taker did another effective job with subpart 3. She provided a clear and confident conclusion, she provided a nice funnel of rules from causation from big, broad rules to narrow, specific rules, which included providing rules for actual cause as well as proximate cause. The test taker provided a really effective application as to why the husband's injuries were foreseeable and therefore proximately caused by the defendant's actions.

I would have also quickly explained how the defendant's actions were also the actual or but-for cause of the husband's injuries, just to be safe, because the court would not have had to address proximate cause if the injuries were not first actually caused by the defendant's actions.

Let's talk about subpart 4. Finally, the test taker did a good job with subpart 4 as well, but her rules and the general organization of her CRAC were not as strong as her other subparts. Subpart 4 was definitely the weakest part of this essay answer. I suspect that the test taker may have been running out of time to complete this subpart answer.

She did not identify vicarious liability as the main rule and issue until the last paragraph of her essay answer, after she had already discussed what an independent contractor is, and after she had discussed when a principal can be held liable for the actions of an independent contractor.

So the organization of her rules was off. Her big, broad rule for vicarious liability came later in her answer, and when she did discuss the rule for vicarious liability, the rule statement was a bit confusing. She also had only one sentence of application for this subpart, which likely was not enough. I think she could have done a better job explaining why the fireworks company was, in fact, an independent contractor and why the HOA could still be liable for the company's actions.

But again, overall, I think this model answer does a really good job of showing clear and confident conclusions. The answer shows what clear and direct rules can look like. The answer shows generally how you can funnel from broad rules to more specific rules. And the answer shows how to effectively use facts from the hypo to support your conclusions.

Yes, there were some grammar issues and misspelled words, and it seemed like the last subpart was rushed, but the graders understand that you have a limited amount of time to write out your answer, particularly for long and potentially complex questions like this particular MEE torts question.

The graders are not going to take away points for grammar issues or misspelled words. They're looking to award you points, and you can get some really good points when you have effective rules and analysis like this model answer from New York.

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Torts Study Guide: Sample Exam Questions

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Introduction

T he Law Library carries a number of resources that test your knowledge of torts. This guide provides a listing of resources of practice essay exams as well as multiple choice questions. There are also links to online multiple choice questions as well as resources to help with law school exams.  The multiple choice questions in torts can be a great way to track your progress. Review the description of each resource for more details.   

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Torts on the Multistate Essay Exam: Highly Tested Topics and Tips

Torts is regularly tested on the MEE. Thus, it is important to be aware of the key principles that are tested and how to approach this MEE topic generally.

Torts on the Multistate Essay Exam

1. first, be aware of how torts is tested.

Torts is tested about once a year on the MEE. While it is frequently tested on its own, it has been combined with Agency. For example, Torts was recently tested on the MEE with Agency on issues of vicarious liability of an employer.

The way that Torts is tested on the MEE is fairly predictable because the examiners test basic tort principles. If you are familiar with the highly tested Torts MEE topics, you should be well on your way to writing a high-scoring Torts MEE answer.

2. Be aware of the highly tested Torts issues

The examiners tend to test several of the same issues in Torts MEE questions. You can maximize your score by being aware of these highly tested issues. (We have a summary of these in our  MEE One-Sheets  if you want to see all of them and have them all in one place.)

Some of the highly tested Torts MEE issues include :

Negligence basics.

Negligence is by far the most heavily tested Torts MEE topic . Thus, it is important to focus on this topic. The basic elements of a negligence claim are (1) duty , (2) breach, (3) causation (both actual and proximate) , and (4) damages.  It is critical to understand these four elements. Many students think they understand negligence but struggle with the topics of actual/proximate causation and duty. If you find yourself in this situation, we recommend that you seek tutoring, rewatch your bar exam course lectures, or seek other help. Causation and duty are tricky topics that are highly tested on the MEE! Additionally, causation also appears in Criminal Law MEE questions. So, taking the time to understand causation is time well spent.

Further, negligence is the most highly tested topic on the MBE. Make sure you learn negligence well!

Children and duty

Generally, a child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances . An exception to this rule is when the child is engaging in an adult activity , such as driving a car or shooting a gun. In those circumstances, the child is held to the same duty of care as an adult. Additionally, some states follow the tender-years doctrine, where children under a certain age (e.g., seven years old) cannot be found negligent (although this is not commonly applied on the MEE).

Eggshell-skull rule

Premises liability

This topic has turned up frequently on Torts MEEs in the past. The premise possessor’s standard of care depends on the plaintiff’s legal status at the time of entry.

• Undiscovered trespassers: These plaintiffs are not owed any duty of care but the landowner cannot act willfully or maliciously by setting traps, for example.

• Discovered trespassers: If the premise possessor knows or should know of the trespasser’s presence on the land), then the premise possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the premise possessor knows of.

• Licensees: These are social guests like friends or family. The premise possessor owes to licensees the duty to warn or make safe all concealed dangers that the premise possessor knows of. However, there is no duty to inspect.

• Invitees: These are persons who are invited onto land to confer an economic benefit (e.g., customers of a business) or land that is open to the public. The premise possessor must warn or make safe all dangers that the premise possessor knows or should know of.  For this category of entrants, there is a duty to inspect.

Negligence per se

Consider negligence per se if you see a Torts MEE that presents a statute that establishes a duty of care. To sue under a theory of negligence per se, the plaintiff must show that (1) the defendant violated the statute without excuse , (2) the plaintiff was in the class of people the statute was trying to protect , and (3) the plaintiff received the injury that the statute was trying to prevent . If the plaintiff can show these three things, then the plaintiff has proven the duty and breach elements of negligence .

Remember that the plaintiff must still prove causation and harm!

Strict liability

To recover for a strict liability tort, the plaintiff does not need to show that the defendant breached their duty . However, the plaintiff must still show duty (in this case, absolute), actual and proximate causation, and harm. The three categories of strict liability torts are (1) wild animals , (2) abnormally dangerous activities , and (3) strict products liability . Strict products liability has frequently been tested on the MEE . For a strict products liability claim, the plaintiff must show that (1) the defendant is a merchant , (2) the product had a defect (manufacturing, design, or absence of warning or instructions), and (3) the plaintiff used the product in a foreseeable way at the time of the injury.

3. Spend a lot of time on negligence to earn points on the MEE and the MBE

Negligence is  the  most highly tested topic in Torts on the MEE. It is also the most highly tested topic on the MBE portion of the bar exam (with 12–13 questions covering negligence!). Dedicating a lot of time to mastering negligence is an excellent way to study efficiently for the bar exam.

4. Practice!

Practice is critical if you want to master Torts on the MEE.

Here, we provide you with some links to free Torts MEE questions and NCBE point sheets. (If you would like to purchase a book of Torts MEE questions and NCBE point sheets, check out our  MEE books  here. You can also see some additional exams  on the NCBE website for free here .)

• July 2021 Torts MEE: this MEE covers negligence, child’s duty of care, physical disability, invitee status, rescuers, and joint and several liability.
• February 2019 Torts MEE: this MEE covers negligence; standard of care; proximate cause; res ipsa loquitur; and joint and several liability.
• July 2017 Torts MEE: this MEE covers abnormally dangerous activity; negligence, proximate cause, and vicarious liability of employer for independent contractor.
• July 2016 Torts MEE: this MEE covers negligence and strict products liability.
• February 2015 Torts MEE (combined with Agency): this MEE covers negligence per se and vicarious liability of an employer.

Go to the next topic, Decedents’ Estates .

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