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5. If the rescuer brings an action against the retailer to recover damages for his injuries, will the rescuer prevail?
In preparation for a mountain-climbing expedition, a climber purchased the necessary climbing equipment from a retail dealer in sporting goods. A week later, the climber fell from a rock face when a safety device he had purchased from the retail dealer malfunctioned because of a defect in its manufacture. Thereafter, a rescuer was severely injured when he tried to reach and give assistance to the climber on the ledge to which the climber had fallen. The rescuer's injury was not caused by any fault on his own part.
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The prima facie case for a products liability claim based in strict liability includes (i) a commercial supplier of a product; (ii) producing or selling a defective product; (iii) actual and proximate cause; and (iv) damages. The plaintiff must prove that the defect existed when the product left the defendant's control. For liability to attach, the product must also reach the plaintiff without substantial alteration.
The prima facie case for a products liability claim based in negligence includes (i) the existence of a legal duty owed by the defendant to that particular plaintiff; (ii) breach of that duty; (iii) actual and proximate cause; and (iv) damages. Generally, privity between the parties is irrelevant except for certain warranty theories of liability.
Under the Restatement (Second) of Torts, ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff merely failed to discover the defect or guard against its existence, or where the plaintiff's misuse was reasonably foreseeable. However, assumption of risk may be a defense where the plaintiff engaged in voluntary and unreasonable conduct and used the product despite discovering the defect and being aware of the danger.
D is correct. A rescuer brought a products liability claim against the retailer of defective climbing safety equipment after the rescuer was injured while helping a climber when the equipment failed. The rescuer can succeed in the claim against the retailer because injury to a person in the rescuer's position was foreseeable if the safety device failed. Under both strict liability and negligence theories of products liability, anyone who is within the foreseeable zone of risk can bring a claim, and no privity is required. Here, the rescuer was within the foreseeable zone of risk since he was a bystander in the area and was injured after the device failed. Therefore, the rescuer could prevail against the retailer.
A is incorrect. The determining factor of the rescuer's success in bringing a claim is that he was a foreseeable plaintiff. Although it is possible that the rescuer could not recover against the retailer on a negligence theory, the facts do not support a conclusion either way as to whether the retailer could have discovered the defect. The facts also do not specify whether the rescuer brought a claim under negligence or strict liability.
B is incorrect. The rescuer is a non-user that would be able to recover against the retailer because he was a foreseeable plaintiff. The facts do not indicate whether the rescuer sought to hold the retailer liable under either strict liability or negligence theories, and the rescuer's reliance would likely be irrelevant under both theories.
C is incorrect. While it is true that the rescuer will be able to recover, this is not because of the climber's lack of negligence. The climber's negligence could potentially cut off the manufacturer's liability if it was the cause of the rescuer's injury, rather than the defective product. However, the facts indicate that the defective product was the cause, and therefore, the climber's negligence is irrelevant.