ANSWERS TO MULTISTATE-STYLE QUESTIONS

6.       D

The facts specify that Paul’s claim is for negligence. Negligence is unreasonable conduct. It may be unreasonable to sell a device as dangerous as an air rifle to an eleven-year-old, because the risk that he will use it to shoot another child is foreseeable. In any event, D is the only finding listed which could result in a judgment for Paul.

A is incorrect because negligence of a manufacturer is not imputed to a retailer. B and C are incorrect because there is no indication that the harm resulted from any defect in the air rifle or that such a defect resulted from negligence.

7.        B

 There can be no liability for defamation unless the defendant intentionally or negligently communicated the defamatory statement to a person other than the plaintiff. Communication of the accusation to Pellum’s mother would satisfy this requirement only if Denner knew or should have known that she would see the contents of the letter which contained them.

A is, therefore, incorrect. C is incorrect because the statements actually were communicated to Pellum’s mother, who read the letter. Courts have sometimes held that an employer who defames a former employee in a communication with a prospective employer of that former employee is privileged if he believes reasonably and in good faith that his statements are true. This reasoning does not apply to the facts given, however, because Denner’s statements were not being made to a prospective employer of Pellum. D is, therefore, incorrect.

8.        D

 A statement is defamatory if it would tend to hold the plaintiff up to shame, disgrace, or ridicule in the minds of a substantial group of respectable people. Since most respectable people believe that theft is disgraceful, an accusation that the plaintiff is a thief is probably defamatory. In a defamation action, a statement means what the reasonable person reading it would think it means. The reasonable person reading Denner’s statement might believe that it accuses Pellum of stealing tools. Whether this is so is a question for the jury, but it is clear that if Denner’s statement accused Pellum of stealing tools it was defamatory and might lead to liability.

If Pellum did not return the tools, Denner’s statement is literally true. Since a statement means what the reasonable person hearing it would think it means, and since the reasonable person might think that Denner’s statement accused Pellum of theft, the literal truth of the statement would not prevent Denner from being liable. A is, therefore, incorrect. A defendant may be privileged to make defamatory statements in a reasonable and good faith attempt to protect a legitimate interest. In deciding whether a former employer was acting in good faith when making a defamatory statement to a plaintiff’s prospective employer, courts frequently look to whether the former employer made the statement gratuitously (making it less likely that he was acting in good faith) or in response to a request for information (making it more likely that he was acting in good faith). B is incorrect, however, because this fact alone is not sufficient to privilege a defendant’s publication. C is incorrect because if the defendant was acting reasonably and in good faith, the interest which a former employer has in common with a prospective employer might be sufficiently legitimate to make the privilege apply.