# Most Tested MBE Torts Topics | BarPrepPlay

Canonical: https://www.barprepplay.com/most-tested/torts/
Markdown mirror: https://www.barprepplay.com/llms/most-tested/torts.md
Byline: BarPrepPlay
Last reviewed: April 22, 2026
Subject: Torts
CTA: https://www.barprepplay.com/?seo_slug=negligence-sudden-emergency&seo_action=drill

## Overview

Torts rewards structural discipline. These rankings keep negligence, proximate cause, products, and intentional torts at the top of the queue because they show up everywhere else in the subject.

## 1. Negligence Elements

DUTY: General duty of reasonable care to foreseeable plaintiffs. Special relationships create affirmative duties (common carrier, innkeeper, employer). Landowners: Varies by entrant status (invitee, licensee, trespasser) - modern trend is reasonable care to all. BREACH: Failure to act as reasonably prudent person. Res ipsa loquitur: Accident doesn't normally occur without negligence, instrumentality in D's control, P didn't contribute. CAUSATION: Actual (but-for) + proximate (foreseeable). DAMAGES: Must have actual harm (not just risk). Eggshell plaintiff - take victim as you find them.

HYPO: Store employee mops floor but doesn't put up "Wet Floor" sign. Customer (P) slips, falls, and breaks hip. P sues Store. Store says another customer (X) spilled water and Store didn't know. Analyze negligence. ANALYSIS: DUTY: Store (landowner) owes invitees (customers) duty to keep premises reasonably safe and warn of known dangers. BREACH: If Store created hazard (employee mopped), failure to warn = breach. If X spilled and Store didn't know, need to show Store should have discovered (reasonable inspection). CAUSATION: But-for wet floor, P wouldn't have fallen. Foreseeable that wet floor causes falls. DAMAGES: Broken hip = physical harm. Could also use RES IPSA: People don't fall in stores normally; floor was Store's control. RESULT: P likely wins if Store mopped without warning OR failed reasonable inspection.

- Exam shortcut: Duty, breach, causation, damages
Sources: torts-restatement-281, torts-restatement-433, torts-restatement-402a

## 2. Proximate Cause

Limits liability to FORESEEABLE consequences of negligent act. DIRECT CAUSE: If unbroken chain, D liable for all foreseeable harms. INTERVENING CAUSES: Foreseeable intervening acts don't break chain (medical malpractice after injury, negligence of rescuers, subsequent disease). SUPERSEDING CAUSES break chain: Unforeseeable intervening acts (criminal acts of third parties generally unforeseeable, unless D's negligence increased risk). EGGSHELL PLAINTIFF: Take victim as you find them - liable for full extent of injuries even if unforeseeable severity (preexisting condition). Thin skull rule doesn't break proximate cause.

HYPO: D negligently rear-ends P's car (minor fender-bender). P has unknown brittle bone disease and suffers multiple fractures requiring surgery. At hospital, doctor negligently prescribes wrong medication, causing P liver damage. D argues not liable for extensive injuries. ANALYSIS: EGGSHELL PLAINTIFF: D takes P as D finds P. Brittle bones = preexisting condition. D liable for ALL fractures even though disproportionate to impact. INTERVENING MEDICAL MALPRACTICE: Is it superseding cause breaking chain? NO - medical treatment after injury is FORESEEABLE intervening cause. Negligent medical treatment does not break causal chain. D remains liable for liver damage too. D can seek contribution from hospital. RESULT: D proximately caused ALL injuries - fractures (eggshell rule) AND liver damage (foreseeable intervening cause).

- Exam shortcut: Foreseeability; eggshell plaintiff
Sources: torts-restatement-281, torts-restatement-433, torts-restatement-402a

## 3. Strict Liability

WILD ANIMALS: Strictly liable for injuries consistent with dangerous propensity. DOMESTIC ANIMALS: Strict liability only if owner knew of dangerous propensity ("one bite rule"). ABNORMALLY DANGEROUS ACTIVITIES: (1) High risk of serious harm, (2) Risk can't be eliminated with reasonable care, (3) Activity not common in area. Examples: Blasting, crop dusting, hazardous chemicals. PRODUCTS: Manufacturing defects, design defects (risk-utility test), warning defects. No privity required. DEFENSES: Comparative fault may apply (except for known dangerous wild animals). Assumption of risk defense available.

HYPO: Owner has pet dog that has never bitten anyone. Dog suddenly bites neighbor. Neighbor sues Owner. Meanwhile, Owner's friend keeps a pet tiger. Tiger escapes and mauls delivery driver. Analyze strict liability for each. ANALYSIS: DOG (domestic animal): "One bite rule" - strict liability only if owner knew of dangerous propensity. First bite with no prior aggression = NO strict liability. Neighbor must prove negligence instead. TIGER (wild animal): STRICT LIABILITY regardless of precautions or knowledge. Wild animals = inherently dangerous. No "one bite" rule. Owner liable even if tiger was always gentle before. Policy: Those who keep wild animals assume risk to others. RESULT: Dog owner NOT strictly liable (no knowledge of propensity). Tiger owner STRICTLY LIABLE. Neighbor must prove negligence; driver wins without proving fault.

- Exam shortcut: Animals, abnormally dangerous, products
Sources: torts-restatement-281, torts-restatement-433, torts-restatement-402a

## 4. Products Liability

THEORIES: Strict liability (most common), negligence, breach of warranty. MANUFACTURING DEFECT: Product departs from intended design. Strict liability - no reasonable care defense. DESIGN DEFECT: All products of that design are dangerous. Tests: Consumer expectation, risk-utility (feasible safer alternative). FAILURE TO WARN: Inadequate instructions or warnings. Must warn of foreseeable misuse and risks to foreseeable users. DEFENDANTS: Manufacturer, retailer, distributor - any commercial seller. DEFENSES: Comparative fault (most states), assumption of risk, substantial alteration of product, learned intermediary (prescription drugs). NO privity required in strict liability.

HYPO: P buys ladder from Retailer. Ladder was made by Manufacturer. One rung cracks due to air bubble in metal from factory. P falls and is injured. What type of defect? Who can P sue? ANALYSIS: DEFECT TYPE: Air bubble = product departed from intended design. This is MANUFACTURING DEFECT - not design defect (design itself isn't flawed; this particular ladder was made wrong). DEFENDANTS: P can sue MANUFACTURER (made defective product) AND RETAILER (commercial seller in chain). Strict liability applies - Retailer liable even without fault. No PRIVITY required. DEFENSES: Did P misuse ladder? Was ladder altered after sale? Comparative fault in most jurisdictions. RESULT: Manufacturing defect. P can sue Manufacturer AND Retailer under strict products liability. No need to prove negligence.

- Exam shortcut: Manufacturing, design, warning defects
Sources: torts-restatement-281, torts-restatement-433, torts-restatement-402a

## 5. Comparative Negligence

PURE: Plaintiff recovers percentage not at fault, even if 99% at fault. MODIFIED (FL post-2023): Plaintiff barred if MORE THAN 50% at fault. FL EXCEPTIONS: (1) Intoxicated defendant - pure comparative still applies; (2) Medical malpractice - pure comparative still applies. JOINT AND SEVERAL: Mostly abolished - each D pays their percentage (FL). CONTRIBUTION: D who pays more than share can seek contribution from other Ds. INDEMNITY: Full shifting of liability (contractual or vicarious liability). LAST CLEAR CHANCE: Abolished by comparative negligence in most jurisdictions.

HYPO: FL car accident. D ran red light but P was speeding 20 over and texting. Damages = $100K. Jury finds: D 40% at fault, P 60% at fault. How much does P recover under current FL law? What if D was drunk? ANALYSIS: FL uses MODIFIED COMPARATIVE FAULT (2023 HB 837) with 51% bar. P is MORE THAN 50% at fault (60%). Under normal rule, P BARRED entirely - recovers nothing. BUT: FL EXCEPTION for intoxicated defendants. If D was drunk, PURE comparative fault applies. P would recover 40% (D's share) = $40K even though P was 60% at fault. Also applies to medical malpractice. RESULT: If D sober, P recovers NOTHING (barred at 60% fault). If D intoxicated, P recovers $40K (pure comparative exception applies).

- Exam shortcut: Pure vs modified; effect on recovery
Sources: torts-restatement-281, torts-restatement-433, torts-restatement-402a

## Primary law and source anchors

- **Restatement (Second) of Torts Section 281**: The basic negligence framework of duty, breach, causation, and damages. (https://www.law.cornell.edu/wex/negligence)
- **Restatement (Second) of Torts Sections 433-435**: Guidance on legal cause, substantial factor analysis, and foreseeability limits on liability. (https://www.law.cornell.edu/wex/proximate_cause)
- **Restatement (Second) of Torts Section 402A**: Black-letter strict-products-liability principles for defective products. (https://www.law.cornell.edu/wex/strict_liability)

## FAQ

- **How should I use this Torts ranking page?**: Use it to decide review order, not as a substitute for practice. Start with the first two or three topics, then reinforce them with timed multiple-choice work.
- **Does "most tested" mean the lower-ranked topics are unimportant?**: No. It means the higher-ranked topics deserve earlier and more frequent review because they trigger more downstream issues and more repeat appearances across mixed sets.

## Related pages

- [Negligence Duty, Breach, and Causation: Torts Deep Dive](https://www.barprepplay.com/deep-dives/torts/negligence-duty-breach-causation/)
- [Torts One-Pager](https://www.barprepplay.com/one-pagers/torts/)