Although liability ordinarily results from the publication of false defamatory statements about the plaintiff, the courts have always required that publication be either intentional or the result of negligence. Dresden’s statement to Prescott was not a publication, since Prescott is the plaintiff. The fact that it was overheard by Audit does not satisfy the requirement of publication unless either Dresden intended that Audit hear it or Audit heard it as a result of Dresden’s unreasonable conduct in the face of the foreseeable risk that Audit would hear it. If Dresden knew that Audit would hear it, he intended the publication. If he should have known that Audit would hear it, he acted unreasonably in saying it.
The courts have never required proof that the defendant knew the statement to be defamatory, so A is incorrect. The United States Supreme Court has held that in some defamation cases the plaintiff must prove that the defendant knew or should have known that the statement was false when he made it. B is incorrect, however, because the requirement has not been applied to a defamation action brought by a private person against a non-media defendant. D is incorrect because knowledge that harm will result is not an essential element of any defamation case.
Strict liability is imposed on the seller of a product which is in a defective condition when sold. Thus, if Riteway sold the product while it was defective, Riteway would be strictly liable no matter who manufactured it.
Parties who work together to accomplish a particular result are involved in a concert of action which may make any one of them vicariously liable for torts committed by the others. A is incorrect, however, because the facts indicate that the manufacturers and retailer did not work together on manufacturing or marketing the product. It has been held that where there are a small number of manufacturers in a particular industry, where all belong to an industry-wide association which establishes industry standards, where those standards result in their products’ being defective, and where all members of the industry and the association are named as defendants, liability may be imposed on an industry-wide basis. B is incorrect, however, because there is no indications that the number of cereal manufacturers is small or that they belong to an industry-wide association which sets standards or that their standards made the product defective or that all members of the industry and their association have been named as defendants. Under the alternative liability theory, where two or more defendants commit identical acts of negligence under circumstances which make it impossible to tell which one injured the plaintiff, it will be presumed that all of them factually caused the plaintiff’s injury. C is incorrect, however, because there is no indication that all of the parties named committed identical acts of negligence or that any of them was negligent at all.