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In the Mattel toy recall case(s), the product liability theories
that the parents might employ against Mattelare as follows;
I. Negligence
Elements for proving negligence;1. uty of !are.". #reach of
duty.
a. $tandard of !are%. !ausation in fact.&. 'ro imate !ause..
In*ury.
'ossible defenses for negligence;1. +ssumption of the ris .".
!ontributory -egligence.%. !omparative -egligence.
a. 'ure b. Modifiedc. Intervening or superseding cause
II. Strict Liability
Elements for proving $trict iability;1. /nreasonably dangerous
defect.
a. esign defects b. 0ailure to test products ade uatelyc.
0ailure to warnd. Evidence on these points can also be used to
establish a breach of duty for
negligence purposes.". 'roduct reaches the consumer
substantially unchanged.%. efect causes the in*ury
'ossible defenses for $trict iability;1. /navoidably unsafe
product.". !omparative fault.%. +ssumption of ris .&. 2bvious
ris .. +bnormal misuse.
3. 4overnment contractor.5. $tate of the art.6. 'reemption.
III. Express Warranty - if the products had an expressed
warranty
Elements for proving breach of e pressed warranty;
1. +ffirmation of 0act or 'romise". escription of the 4oods%.
$ample or Model&. #asis of the #argain
IV. Breach of Implied Warranty of Merchantability This might be
aimed at the retail seller ofthe allegedly defective goods.
Elements for proving #reach of Implied 7arranty of
Merchantability;1. 4oods must be fit for the ordinary purpose for
which they are used.
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". 4oods must serve their purpose safely.%. 4oods must be of
average grade or uality.&. $eller must be a merchant. 4oods
must be ade uately pac aged and labeled.
'ossible defenses for #reach of 7arranty1. -o privity of
contract.". !ontributory -egligence.%. !omparative -egligence.
a. 'ure b. Modifiedc. Intervening or superseding cause
If the statements made by people against Mattel were proven
false, then Mattel might consider thefollowing torts;
I. Defamation (libel is written defamation, slander is spo en
defamation)
Elements for proving defamation;1. !ommunication or publication
to a third party.". 2f false statements.%. Made with nowledge of
their falsity or with rec less disregard of the true facts or
in
negligently failing to ascertain the truth.&. :hat violate
the right to ac uire and maintain a good reputation,. 2f another 3.
'ublic figures (in this case a corporation) must show malice.
'ossible defenses for defamation;1. !onsent". 'olitical
broadcast%. Made by a government official in the performance of
government duties&. Made by participants in a *udicial
proceeding. $tatement made between spouses
3. :ruth (in some *urisdictions, however the defendant has the
burden to prove that thederogatory statements are true)
II. Disparagement
Elements for proving disparagement;1. Made false statements
about the uality or ownership of the plaintiff s goods or
services.".
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'ossible defenses for in*urious falsehood;
1. 'rivilege". 4ood faith assertion of competing property
rights%. 4eneral unfavorable comparisons.
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