what are the theories of products liability?
- intent
- negligence
- implied warranties of merchantability and fitness for a particular purpose
- representation theories (express warranties and misrepresentation)
- strict liability
elements for strict liability theory for products liability
- D is a merchant,
- product is defective,
- product was not substantially altered since leaving D’s control, AND
- P was making a foreseeable use of the product
For a SL PL action, who can be held liable?
commercial sellers - manufacturers, wholesalers, and retailers
will a product’s noncompliance w/ gov safety standards establish that the product is defective?
yes
what is a PL action based on a negligence theory?
proved to same standard as regular neg case, intermediaries typically not held liable
what is a PL action under an implied warranty of merchantability?
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
what is a PL action under an implied warranty of fitness for a particular purpose?
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
what is a PL action under a representation theory of express warranty?
an express warranty is an affirmation of fact or promise concerning goods that become a part of the basis of the bargain
what is a PL action under a representation theory of misrepresentation of fact?
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
elements of defamation
- defamatory statement that specifically identifies P
- published to 3d
- falsity
- fault on part of D, AND
- damage to P’s reputation
who is liable for defamation?
- 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
when must actual malice be shown in a defamation case?
cases brought by public officials and figures
what is actual malice?
knowledge of falsity OR reckless disregard
when must negligence be shown in a defamation action?
if statement involves a matter of public concern
must special damages be shown for slander?
yes, unless slander per se
what is slander per se?
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
what is appropriation of a person’s picture or name?
P must show unauthorized use of P’s picture or name for D’s commercial advantage
what is intrusion on P’s affairs or seclusion?
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
what is an action for false light?
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
what is public disclosure of private acts?
involves public disclosure of private information about P that is highly offensive to a reasonable person
