Torts

Question 1

Because danger invites rescue, a rescuer is a __________ plaintiff.

Answer 1

Foreseeable plaintiff

Question 2

Last Clear Chance Doctrine

Answer 2

In a contributory negligence jurisdiction, although recovery is barred at common law, the plaintiff can recover despite their own contributory negligence.
- the person with the last clear chance to avoid an accident that fails to do so is liable for negligence.

Question 3

Discharge by Failure of Condition

Answer 3

Defenses
Condition: an event/state of the world that triggers a party’s duty to perform of cuts it off.
- Ex: David will purchase the house if he can get a mortgage at 5% or less- if he cannot, his performance is excused.

Question 4

Impossibility

Answer 4

Defenses
Death or incapacity of objectively necessary party.
- the contract will be discharged
Destruction of subject matter.

Question 5

Impracticability

Answer 5

Defenses
Party encounters extreme and unreasonable difficulty and has not assumed the risk of the difficulty arising.

Question 6

Frustration

Answer 6

Defenses
Performance will not get one of the parties the benefit bargained for because of a subsequent event.
- Both parties must have known the purpose at the time of contracting.

Question 7

Illegality

Answer 7

Defenses
The subject matter of the contract is illegal or becomes illegal.

Question 8

Modification

Answer 8

Defenses
Doesn’t let the party out of the obligation to perform, it is an argument that the parties changed the performance was due.
- if the contract as modified is within the SOF, the modification usually will have to be evidenced by a signed writing that includes key terms.
- A contract within a contract, requires consideration = for changes on both sides

Question 9

For a bystander who is outside the zone of danger from the risk of physical injury but who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery only if:

Answer 9

(i) the plaintiff and the person injured by the defendant are closely related;
(ii) the plaintiff was present at the scene of the injury; and
(iii) the plaintiff personally observed or perceived the event

Question 10

Public Nuisance

Answer 10

• a tortious harm that interferes with private property rights
  R: a substantial, unreasonable interference with another private individual’s use or enjoyment of property that is offensive, inconvenient, or annoying to an average person in the community.
• to prevail on a private nuisance claim, a P must demonstrate that the nuisance is an unreasonable interference by showing that the injury outweighs the utility of D’s conduct.

Question 11

Elements of Strict Liability