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In the Mattel toy recall case(s), the product liability theories that the parents might employ against

Mattel
are 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. Modified
c. Intervening or superseding cause
II. Strict Liability
Elements for proving $trict .iability;
1. /nreasonably dangerous defect.
a. esign defects
b. 0ailure to test products ade1uately
c. 0ailure to warn
d. 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 of
the 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.
'age 1 of % 189"9"81&
". 4oods must serve their purpose safely.
%. 4oods must be of average grade or 1uality.
&. $eller must be a merchant
). 4oods must be ade1uately pac,aged and labeled.
'ossible defenses for #reach of 7arranty
1. -o privity of contract.
". !ontributory -egligence.
%. !omparative -egligence.
a. 'ure
b. Modified
c. Intervening or superseding cause
If the statements made by people against Mattel were proven false, then Mattel might consider the
following 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 ac1uire 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 the
derogatory statements are true)
II. Disparagement
Elements for proving disparagement;
1. Made false statements about the 1uality or ownership of the plaintiff;s goods or
services.
". <nowing that they were false or with conscience indifference as to their truth.
%. :he statements caused actual harm
&. amages not presumed.
III. In!rio!s "alsehood
:ypes of in*urious falsehood;
1. 'roduct isparagement
". :rade .ibel
%. $lander of :itle
Elements for proving in*urious falsehood;
1. 0alse statement made with ,nowledge of falsity or indifference to the truth
". !ommunication to a third party
%. .oss of value or damages.
'age " of % 189"9"81&
'ossible defenses for in*urious falsehood;
1. 'rivilege
". 4ood faith assertion of competing property rights
%. 4eneral unfavorable comparisons.
'age % of % 189"9"81&