responsive-design469792741TSEvery first-year law student can recite the “Good Samaritan” rule: The ordinary bystander has no legal duty to rescue a drowning person, but if you voluntarily undertake the duty to rescue her, you must not be negligent in your efforts.

This rule also has applications in the products liability arena where a defendant implements post-sale corrective measures. In those situations – where the defendant implements a recall or a retrofit of its product and/or issues a post-sale warning – where the defendant was not under a legal duty to take any of those actions in the first place, those corrective measures are not immune from attack . In such cases where a defendant has performed some corrective measure in the interests of the safety of its customers, regardless of those good intentions, injured plaintiffs will often claim that the defendant “voluntarily undertook” a duty toward the plaintiffs. They will further allege that the defendant did not do enough to fulfill that assumed duty, and that those negligent acts caused or contributed to the plaintiffs’ injuries.

What can the products liability defendant do to avoid being “hoisted on its own petard” of well-intentioned efforts to improve safety?

In many states, the Good Samaritan rule is taken from the Restatement (Second) of Torts, section 324A, “Liability to Third Person for Performance of Undertaking,” which provides:

One who undertakes, gratuitously or for consideration, to render services  to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a)    his failure to exercise reasonable care increases the risk of such harm, or

(b)   he has undertaken to perform a duty owed by the other to the third person, or

(c)    the harm is suffered because of reliance of the other or the third person upon the undertaking.

To succeed under this rule, the plaintiff must prove any one of the three elements of the rule, or in other words, meet the requirements of subsection (a), (b) or (c). A company that is defending against this argument in a product liability lawsuit should highlight the plaintiff’s inability to offer evidence proving any of the three required elements.

In my experience, subsections (a) and (c) arise most often in product liability cases.

Cases construing subsection (a) make it clear that the test for “increased risk” is not whether the risk is increased over what it would have been if the defendant had not been negligent, but rather whether the risk is increased over what it would have been had the defendant not acted at all. See, e.g., Myers v. United States, 17 F.3d 890, 903 (6th Cir. 1994). This often allows the defendant to argue that while its voluntary undertakings may not have been perfect, they certainly did not increase the risk of harm to the plaintiff compared with taking no action whatsoever. This argument is particularly effective in a warnings case in which the plaintiff criticizes the scope or content of a voluntarily undertaken post-sale warnings program where there is testimony that the plaintiff never saw the warnings.

Similarly, under subsection (c), the defendant can often make use of the fact that the plaintiff did not know about and certainly never relied on the defendant’s undertakings. See, e.g., Ostendorf v. Clark Equipment Co., 122 S.W.3d 530, 537-40) (Ky. 2003) (even though Clark had undertaken a voluntary retrofit and post-sale warnings program for its forklifts and plaintiff’s forklift had not been retrofitted and plaintiff had not been warned, no duty to plaintiff was assumed because the risk to plaintiff had not been increased relative to Clark not acting at all under subsection (a) and plaintiff had not relied on Clark’s actions (under subsection (c)).

In short, there is some “good” in the “Good Samaritan” rule, and a defendant in a product liability action can make use of it when dealing with the allegation that its voluntary post-sale corrective measures were negligent and harmed the plaintiff.