FunTime manufactures children’s toys in Winnipeg. It has a new product that is a variation on a bow and arrow: there are suction cups instead of points on the end of arrows. The products are solidly manufactured of plastic in a variety of very attractive fluorescent colours. The product, if correctly used, is completely safe. It is possible, however, for a determined child to remove the suction cup, rendering the arrow dangerous. FunTime, mindful of this potential, takes great pains to ensure that all parts of the packaging are labelled with a warning to consumers that this toy should not be given to children under age 5.
FunTime embarks on an aggressive pre-Christmas advertising campaign in which the new bow and arrow set as its showcase product. The primary focus of the campaign is children’s television cartoons. The most popular advertisement shows a group of small children playing a game of hide and seek in an imaginary location: the advertisement highlights the attractive colours of the product, and the entire ad is bright, loud, and appealing. The marketing strategy has resulted in most of the advertisements being placed in the 9 a.m. till 11 a.m. time slots on weekday and weekends. The jingles soon become a favourite theme with young children, the campaign is a great success, and sales increase dramatically.
Mrs. Wong, a grandmother, is persuaded by her very persistent young grandchildren, aged 4 to 7, to buy the product. Unfortunately the youngest gets in the habit of chewing on the arrows while watching TV. The suction cups disintegrate but the children keep playing with the toy. Inevitably one suffers a serious eye injury as a result of the misuse of a damaged arrow.
Assuming that the injured child, through its parents, now sues FunTime for negligence, review the arguments that might be used by both parties in the case. What defences might FunTime raise? Should it consider “joining” any other parties (arguing that they are responsible)?