BLL Torts

Question 1

what are the theories of products liability?

Answer 1

1. intent
2. negligence
3. implied warranties of merchantability and fitness for a particular purpose
4. representation theories (express warranties and misrepresentation)
5. strict liability

Question 2

elements for strict liability theory for products liability

Answer 2

1. D is a merchant,
2. product is defective,
3. product was not substantially altered since leaving D’s control, AND
4. P was making a foreseeable use of the product

Question 3

For a SL PL action, who can be held liable?

Answer 3

commercial sellers - manufacturers, wholesalers, and retailers

Question 4

will a product’s noncompliance w/ gov safety standards establish that the product is defective?

Answer 4

yes

Question 5

what is a PL action based on a negligence theory?

Answer 5

proved to same standard as regular neg case, intermediaries typically not held liable

Question 6

what is a PL action under an implied warranty of merchantability?

Answer 6

goods are warranted that the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used

Question 7

what is a PL action under an implied warranty of fitness for a particular purpose?

Answer 7

arises when seller knows or has reason to know the particular purpose for which the goods are req’d and that the buyer is relying on the seller’s skill and judgment in selecting the goods

Question 8

what is a PL action under a representation theory of express warranty?

Answer 8

an express warranty is an affirmation of fact or promise concerning goods that become a part of the basis of the bargain

Question 9

what is a PL action under a representation theory of misrepresentation of fact?

Answer 9

seller will be liable where:
1. statement was of a material fact concerning the quality or use of goods AND
2. seller intended to induce reliance by the buyer in a particular transaction

Justifiable reliance by buyer is req’d

Question 10

elements of defamation

Answer 10

1. defamatory statement that specifically identifies P
2. published to 3d
3. falsity
4. fault on part of D, AND
5. damage to P’s reputation

Question 11

who is liable for defamation?

Answer 11

• author or speaker
  -primary publisher (ex: newspapers, TV stations)
  -one who repeats liable as primary publisher
• secondary publishers only if thy know or should have known content was defamatory

Question 12

when must actual malice be shown in a defamation case?

Answer 12

cases brought by public officials and figures

Question 13

what is actual malice?

Answer 13

knowledge of falsity OR reckless disregard

Question 14

when must negligence be shown in a defamation action?

Answer 14

if statement involves a matter of public concern

Question 15

must special damages be shown for slander?

Answer 15

yes, unless slander per se

Question 16

what is slander per se?

Answer 16

defamatory statements that:

-adversely reflect on P’s business or profession
-state that P has committed a serious crime (crime of moral turpitude)
-impute that P has engaged in serious sexual misconduct
-state that P has a loathsome disease

Question 17

what is appropriation of a person’s picture or name?

Answer 17

P must show unauthorized use of P’s picture or name for D’s commercial advantage

Question 18

what is intrusion on P’s affairs or seclusion?

Answer 18

acts that are highly offensive to the reasonable person such as eavesdropping, spying, interception or calls or communications, etc.

Photos taken in public NOT included

Question 19

what is an action for false light?

Answer 19

exists where one attributes to P views they do not hold or actions they did not take that are highly offensive to the reasonable person

Question 20

what is public disclosure of private acts?

Answer 20

involves public disclosure of private information about P that is highly offensive to a reasonable person