I got a defense to your claim of negligence
Plaintiff conduct can affect they right to recover damages
D aint entirely liable to P
Under common law two defenses used by D

Contributory, “contrib” if you’re cool
It’s a complete bar if you follow that school
Got a duty of reasonable care for your own safety
So when you walk across the busy road don’t be hasty

But if the speeding car
Had the last clear chance
There is no bar
And you can do the full recovery dance

Assumption of risk, deliberately voluntarily encounter a risk
Created by D’s negligence
P can’t recover damages as a consequence
Of assuming a risk understood to exist

Modernly we use comparative fault
Apportion liability based on percentage of fault
Reduce recovery proportionately
To the degree fault in causing all the damage is P’s

Unless it is modified
Then we got one more rule to apply
If defendant is less than 50% of the fault
Not go’n’ be able to recover at all

Defendant’s council charges a reasonable hourly rate
To raise a defense to the plaintiff’s claims of negligence

Assumption of risk, still gotta talk about this
Voluntarily assume the risk you fully understood to exist
Explicitly we call that express
As in: “Your honor the defendant’s counsel rests”

Implied assumption that’s the fireman’s rule
So if you try to recover damages it’s not cool
Primary assumption of risk
The defendant wasn’t negligent

Secondary like when there is slippery ice
You encounter it too bad that the result was not nice
Yeah it’s too bad, ‘cause that’s a complete bar, Yikes!

Joint liability.
Each party responsible for all the damages to P
P got the option.
Of getting all of his damages from one D

Several liability.
Each party responsible
for the harm that he caused to D
Unless it is indivisible damage
Then P can recover from whomever he can manage

And if they both shot at the same time
When your huntin’ party got out of line
One of ‘em gotta prove that they didn’t do it
To get away from the damages that you is pursuing

Market share, plaintiff not aware
Of exactly who to blame for breaching reasonable care
D gotta prove he did not supply
Gonna pay fair market share otherwise

And if you cause a loss of chance of survival
Ya liable for the grim reaper’s arrival
Granted it’s a little more complicated than that
You actually got to do a little bit of math

Contribution, if two Ds
Are liable jointly and severally
One pay more than his pro rata share?
Well he can recover from the other if he care

Indemnity recover entirely from the other D
Unless the court order that it be paid by thee
Traditionally tortfeasers one legal entity
Modernly some use the rule made up in Cali

Partial equitable indemnity or comparative indemnity
You can call it whatever you want to call it
Tobriner made it up out of the law that is common.

Defendant’s counsel charges a reasonable hourly rate
Make sure defendants don’t gotta pay for another party’s negligence


Plaintiff's Conduct

We get to affirmatively remedy past wrongs
Gonna try to cover the case law in this song
Korematsu set the standard even though they got it wrong
Brown did not use it to bring the nation along

Did say they could go ahead and invoke
Equity power to bring equitable result
Quotas and bussin and other things OK
To move past those discriminatory days

Swann a case where the court threw down
Milliken in Detroit the court threw them out.
No inter-district wrong, no inter-district effect
No constitutional reason to keep them in check

BOE  OKC Public schools Dowell who they V
Question have they moved to unitary
To the best of they ability for desegregation decree
Vestiges eliminated practicably?

Parents  v Seattle School D no.1 
Seems like they got a compelling reason
Kennedy the one racial balance OK
In public schools no quotas no basin on race

But what about laws that benefit minorities
Need official racist history with the authorities
Not in Richmond v. JA Croson Co.
Sub contract mandate thrown out the do(or)’!

Grutter want to go to law school at UM
Why was race included in the application
It’s OK if it’s a factor of the individual
Compelling interest in diversity can be racial

But what about Gratz 
We gonna have a different standard for undergrads?
Yeah cause they race get them an automatic bump
And race alone cannot be what get them over the hump

Easley v. Cromartie easily a racial effect
But did they draw the district with a racial intent?
When coulda easily been a political play
Show they coulda done it better doin it another way

Aight now it’s time to recap
Make sure that we know all the law that is black
Black letter law gonna be strict scrutiny for all
Classifications of race and origin national

Straight up quotas for desegregation
Till it’s done you can use transportation
To remedy gotta have actual violation
Done when discrimitnation been eliminated

And you can still value diversity in school
Racial if we talking higher education
Gotta be evaluated as an individual
Gettin Automatic bump unconstitutional

Quotas to remedy institutional wrongs
Up until disparity is gone
If there was just a societal effect
Then theres nothing that they need to keep in check


Affirmative action

Third party actions

I don’t know why this is where we talk about
trespass to chattel
If it isn’t also where we talk about trespass to land
If you read Epstein probably know what I mean
I have no idea, get on with it man

Intentional interfering with a right of possession
Intermeddling harm or substantial dispossession
Harmless intermeddler done nothing wrong
Not like the man on yo land as he move along

You do not need to know that the thing was not yours
Same way you look at conversion tort
Intentional exercise of dominion or control
Harmless intermeddler? Answer still no.

Over the property of another so great as to warrant
Full value of property paid
I know they both seem kind of the same
And you never know, they might be someday

Hey, he has a tiger, I mean he has a tiger
Wild animals no reciprocity in that
Not like gettin scratched by your neighbor’s kitty cat

If you want to have a manatee I don’t see the harm in that
But an animal in undomesticated class?
Likely to cause injury to your ass?
Strict if ferae naturae

If it causes physical harm
Not if plaintiff tried to get  tiger to lick they arm
That’s kind of odd, I guess we’ll call it comparative causation

I got a dog that is abnormally dangerous
reason to know about the tendencies dangerous
Abnormal for animal category
Too bad, so sad, end of story

Livestock crossin’ onto your land
Not dogs or cats, can
Lead to liability for physical harm
So please keep your cows off of my farm

If not  distress damage feasant
Until I get my damages
 ya cattle  I am keepin

BOOM WE BLASTIN!
Warning: Ultrahazardous or
Abnormally Dangerous Activity

One who carries on an abnormally dangerous activity
Is subject to liability for the harm
To the person land or chattels of another
Although he exercise utmost care to prevent the harm


Limited to the kind of harm possibility
That make it a dangerous activity
How do we determine it?
Second restatement 520

Existence of a high degree of risk
To the person, land, or chattel of others of harm
Likelihood that the harm resultin will be great
Inability to eliminate

The risk by the exercise of reasonable care
Not a common usage as far as I am aware
Not appropriate for activity to be there
Lot of value to the community, so there

520 becomes 20 ABCE, B(1)
D B(2) no dangerous attribute vs. community value

Mr. employer, one last bit of liability for ya
Vicarious respondeat superior
Servin the master doin what employees do
People at risk, you get the benefit
And ya got deep pockets too

Are you an independent contractor
Or an employee doctor?


Affirmative action

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