Torts

Intentional infliction of a harmful or offensive
Contact with the person of another
Intentional infliction of an apprehension
Of imminent physical harm
Intentional entering above on or under
Land or real property of another
Intentional infliction of emotional distress
Conduct extreme and outrageous

Intent’s a desire to cause such an outcome
Or substantial certainty it will result
Most jurisdictions intend the contact
Some intend a harmful or offensive contact

Did it cause a physical impairment?
Would the average member of society be caring?
Was there a subjective standard of D?
Known by P? Well that’s offensive. See?

Direct or indirect physical contact
With another person’s body
Or an object closely associate with their body
In the presence of they body not real property though

That’s trespass to land
Stay or leave personal property too long
On they land
After the invitation long gone

Intend to bring yourself on to some land
You don’t need to know that it’s the land of another
You could do it above on or under or intangibly
If you can prove the damages P

If I intend to cause a reasonable apprehension
Of immediate contact that is harmful or offensive
And I do indeed cause such a result
Then the jury could be finding me liable for assault

Gotta be aware of the danger that’s coming
gotta be coming at you for you to be recovering
Words not really gonna be enough
You don’t get assault for just talking tough
Harm being threatened must be imminent
D don’t need ability to carry out the threat
Words could be enough if the circumstances
Indicate ignoring them is taking yo’ chances

Intent can be that ya meant to touch
If you only meant to scare ‘em well that’s enough
But if you meant to scare ‘em in a manner outrageous
Whole other tort, now we turnin pages

IIED, Intentional or recklessly
Emotional distress liability or for harm occurring bodily

conduct is directed at a third party
I could still recover if I’m there and I’m family
If I’m not family emotional harm need
To affect me physically!


Intentional torts

Duty of reasonable care
The reasonably prudent person gotta be aware
Of the expected conduct under the circumstances
And foreseeable risk to others caused by his actions

Who is the reasonable man – what does he do?
It’s a standard that is aspirational – what should he do?
Who is the reasonable man – what does he do?
It’s a standard that is aspirational – what should he do?

An adult is an adult objectively
Child: same age intelligence experience unless
Engagin’ in an adult activity
Need a license or just dangerous inherently

If a person is disabled physically
Well it’s a reasonable person with the same abilities
If ya old that’s the only break that ya gon’ get
Mental infirmity get no respect

Also if you is insane
Ya not getting off the hook somebody gotta pay
Unless you was suddenly incapacitated
Ability to be a reasonable person terminated

The only way wealth plays into actions is
If defendant looking for punitive damages
The only way wealth plays into actions is
If defendant looking for punitive damages

Experts are experts, read all about it
Beginner can’t claim beginner no doubt about it

Reasonable care, common sense
Not much else to say, it’s common sense
But you could also make it make economic sense
Use the Hand formula to calculate negligence
BPL if B is less than the PL
And D don’t do B, D held liable for the resulting L

Custom is a good defense when the Plaintiff huntin’
For deep pockets
Anything for corporation duckets on the docket
Wanna open up the safe, custom gon’ lock it

Not quite custom just relevant evidence of 
Reasonable prudence of defendants
Use it as a sword, defendant fell short
as a shield conduct did comport

No way that a defendant can claim
That a negligent practice common in the trade
If it comes at the expense of society is OK
Court gonna set the standard. OK?

Plaintiff present evidence to push ‘em that way
Help ‘em bring custom round to modern day
Negligence per se, negligence imposed legislatively

Jury don’t need to find reasonable
Stats and regs got that covered in full
Only question did he violate?
and was he the cause that was proximate?

Need to be a member of the class
The statute intended to protect they ass
Is the harm the type that the law meant
To be the type the statute was intended to protect against?

Sheep on a ship overboard!
Keep ‘em in a pen to prevent disease
Sheep on a ship overboard!
Not negligence when they fell into the seas

Res ipsa loquitor
the thing speaks for itself
It wouldn’t have happened if there hadn’t been negligence
But it happened and there isn’t enough evidence

Jury can infer from the circumstances
Shift of burden improve the P’s chances
Instrumentality causing injury 
Must be under exclusive control  of D

Without negligence
the accident would not have occurred ordinarily 
Cause of the harm cannot be the fault of the P
the thing speaks negligence see?


Duty of reasonable care

If a physician depart from the generally recognized
And accepted practices and procedures
That would be followed by the
average competent physician
In defendant’s field of medicine

Or he fail to apply the “degree of skill and learning
Commonly applied under all the circumstances…
By the average prudent reputable member of the profession
He might need some representin

Two schools what he did was cool
Alternate practices and treatments are acceptable
Need a considerable number of respected physicians
For school of thought to be thought sufficient

Judgment error OK ex post not ex ante
Evidence should have known is plenty
Expert testimony generally required 
For relevant medical standard to be identified

Unless it is common knowledge
Jury don’t need to go to medical college to figure it out
Custom is the standard!
We use a national standard!

‘Cause doctors always gonna try to do they best
still gotta get from the patient their informed consent
What would the reasonable patient want to know
Actual harm gotta happen to recover though

In my local town we don’t have
all of your fancy big city equipment
so the standard of care there
is a little bit different


Medmal

Yo, You got a duty to do something, but what?
We live in an individualistic society
You do you, I do me, I let you be
No duty to rescue, see?

Unless I made the perilous situation occur
Brought about the danger, gotta do my best
Omission to warn of danger created negligence
Installin voluntarily watchmen on the tracks

Gratuitously act and they rely you gotta pay ‘em back
Marsalis was a lady got scratched by a cat
Watch out Bernard, don’t break the brandy cask
Gotta competently complete gratuitous task

What about the guy or gal that got some land
Invitee there to do some business man
Utmost duty of reasonable care
Things that could harm people cannot be there

Licensee invited as a social guest
Safety on the premises not at its best
Well you gotta let em know
The porcelain tap handle is cracked bro

Where you comin’ from why you trespassin’
No Rambo booby traps, and that’s it (dammit)
Now days lotta places reasonable care
‘cause really toward that person how much should you care

Got a nuisance that will attract infants on to your land
Infants are children not babies man.

The place where the condition existin
Possessor know gonna have trespassin children
Unreasonable risk of death or serious harm
Cost of takin care of it aint gonna be an arm

Not rivers, creeks, ponds, wagons,
Axes, plows, woodpiles, haystacks
Artificial. and they young children
Don’t know that it’s a dangerous condition

Don’t gotta control the actions of a third party unless
You got a special relationship. Yes.
Parent custodian employer
Mental health professional Tarasoff for ya

“Once a therapist does in fact determine… that a patient
Poses a serious danger of violence to others
He bears a duty to exercise reasonable care
To protect the foreseeable victim” if he is aware

Of specific victim identified
Kline live in a complex
violence happenin inside
1500 Massachusets in DC to be precise

P let D know about the condition
D the only one who could really secure the building
Liable to the party under his submission
Duty imposed upon the one in control

To take precautions reasonable
For the harms that could be easily anticipated
Otherwise he’s liable
For the type of harms that were the type anticipated


Affirmative duties

Duty breach causation damages
What did you say? Causation then damages?
OK let’s talk about that
First off the one they call the cause in fact

Factual: generally, “but for”
But you can also have it with substantial factor
Two fires converge in the woods
But for one the other one still could

So we let em both pass that test
Proximate cause gonna take care of the rest
Could it be reasonably foreseen that the conduct of D
Would cause the type of harm suffered by P

Foreseeability that’s the test
You could also look directly at direct
Might as well talk about zone of danger test
I like what Anderson said best

Cardozo won the day with eye of ordinary vigilance
Foreseeability, also literally distance
Proximate not cut off by an intervening act
Supervening meaning that the chain was not in tact

You could probably foresee
that there would be a criminal act
Definitely that the thin skull egg shell Plaintiff would crack
Suicide if the P don’t like where the tort had left ‘em at

Escape same thing
Rescue from a danger defendant creating
Danger invites rescue
Plaintiff get the defendant to pay em back thank you
Sickness or negligence inflicted inside the ICU

Are foreseeable too.
Did the defendant inflict NIED on you
Got a whole other set of super special rules
To see if NIED was proximate to you

Used to have to be direct impact
Mouse hair in yo mouth horse poop in ya lap
Except negligent transmission of a notice of death
Negligently treatin a body already dead

Or you who the negligence’s direct victim is
Like the couple who found out
the husband had some syphilis
Delieu talk about where the zone of danger is
Fear of injury to self is required

Dillon in Cali Tobriner laid it out
Gotta be located near the scene without a doubt
Contemporary sensory observance of the accident
P and D are not closely related court aint having it

And once the causation has been established it’s 
Time for defendant to pay for damages

Not gonna count if I read about it in the paper or my auntie called to tell me about it on the telephone.


Causation

Defendant got a defense against torts with intent
Consent a good defense for defendant

Consent mean the D can prevent the P
From recovering fully I mean in full
Cause they said it was cool
If the plaintiff consented by mistake, consent a valid defense unless

Defendant caused the mistake, Or he knows
Liable for the advantage he take Oh!
Fraud regarding an essential fact
Not collateral make it an invalid act 

like consent attained through duress
Unless threat is a future harm
Implied consent a lady stickin out her arm
apparent consent is
What the plaintiff conduct had meant

Also got custom on the subway
You consent to people pushing you this and that way
This way and that way

Sports inherent risk in the game
not an illegal hit after the play
Emergencey
contact reasonably needed to prevent death injury OK!                                                    			
Surgeon limited privilege to extend to
What a reasonable person would consent to
If the family is not available to say it’s cool

Misunderstanding of a material fact
Also cannot consent to a criminal act
Unless it isn’t a crime that breaching the peace
Unless the law intended to protect y’all

Substituted consent OK P less likely 
To challenge a decision of the family
Consent of guardian or parents
For very young children or incompetents

Drunks, you’re all on your own. 

Self defense proportional force
Imminent threat of battery or false imprisonment
Defense of others the same aight?
Reasonably believe intervening necessary

And the third party had self defense rights?
You can bring the hammer throw ya hat into the fight
‘Cause you got the right to do what is right, right?
So why?.... you sneakin’ up on my land

Cannot shoot you with a spring,
cannot shoot you with my hand
But I can be the man and take a stand
Ask you politely to please get off my land
But if you actively destroying, I could lay a hand

And if I find you in my castle, I’m a be the man
Hot pursuit to get back my chattel damn
Doesn’t extend to any sort of ensuin’ battle 
Definitely not if I shoot you to get my cattle

Mr. Landlord, don’t you dare lay a hand on me
I suggest you call the police.


Defense to intent

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

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?


Torts

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