Foreseeability
Posted: September 9, 2026 Filed under: Product Liability, Risk Management | Tags: Foreseeability, foreseeable Leave a commentIf it is foreseeable, then you need to understand and know it because that is part of the proof that might help you lose a lawsuit.
Accident Databases and Foreseeability
Often, in the United States, a group of people wants to build a database of accidents. The UIAA is also working on this.
In the United States, this is a bad idea; it would actually lead to more lawsuits.
Over time, it might reduce the number of injuries. However, the American Alpine Club has been producing Accidents in North American Mountaineering for decades, and the book is getting thicker, not smaller.
From a manufacturing perspective, for the database to be effective, you would have to gather much more information than a spreadsheet might provide. Photographs, weights, distances, mass, etc.
Consequently, it sounds like a great idea; however, in reality, I doubt it would have much value, except to plaintiffs wanting to sue.
From a guide and outfitter perspective, these are issues you need to add to your safety or daily briefing. You have seen your clients do or try this in the future, so you need to warn your clients about it now.
Negligence and Foreseeability
The basic lawsuit in the United States against manufacturers is a claim for negligence. There are generally four steps the plaintiff must prove to establish negligence:
1. Duty
Did the manufacturer of the product have a duty to make a product that was free from defects?
Did the manufacturer have a duty to inform the consumer of any defects or of any ways the product has or could fail?
2. Breach of Duty
Did the manufacturer fail to make a safe product?
Was it foreseeable that the product could fail in this way?
3. Injury
The plaintiff must have suffered an injury.
4. Damages
The plaintiff must have suffered damages arising from the injury.
One issue that is used to prove there was a breach of the duty is whether or not the injury was foreseeable.
Did the defendant know, or should have known, that the injury the plaintiff received was foreseeable?
Most of the time, this is the hardest issue to prove for the plaintiff and how we win lawsuits for the defendants.
However, a list of accidents would eliminate this issue in many cases. If the plaintiff can search the list and find a similar accident, then the accident was obviously foreseeable.
How Accident Information Can Become Evidence
Currently, a plaintiff’s attorney can do Google searches for similar accidents, and social media has been a big place to search for similar accidents.
Plaintiff’s attorneys can also search a database the plaintiff’s attorneys keep.
However, these searches are time-consuming and do not necessarily pull up enough information to prove foreseeability.
If foreseeability is not proved that way, and the manufacturer knew similar accidents had occurred with their product, then the plaintiff’s bar has to find an expert witness to give an opinion on foreseeability.
This is expensive and slows or stops a lot of litigation.
Foreseeability is not dependent upon a specific product, place, or time.
Meaning, if another ascender failed mountaineering three years ago because it slipped on an icy rope, it would be foreseeable that a Petzl ascender failed last month in the same situation—slipping on an icy rope.
Different manufacturers, but enough similar facts to prove foreseeability.
If another outfitter took a group of clients on a hike and several took off to see a view and a side trail, the outfitter knows that having clients leave the group is now foreseeable on this hike.
You Cannot Assume Accident Information Will Remain Private
There is also no way to protect the information from anyone.
Even if you send the information to the reporting group anonymously, the group cannot hide your information if the court issues a subpoena to compel the disclosure of the information.
The court could hold the keeper of the information in contempt for not disclosing who provided the information.
Contempt means the court could fine the keeper for each day the name of the manufacturer is not provided or even put the keeper of the information in jail.
Also, the court could compel the manufacturer to disclose whether the manufacturer ever sent information to the keeper of the information and compel the manufacturer to disclose every account that they disclosed.
So once the plaintiff can prove the manufacturer knew or should have known of the problem, the issue of foreseeability is moot.
At the same time, the plaintiff’s bar is keeping track of all lawsuits that are successful.
So, once you settle or lose a lawsuit, that information is kept in a data system that members of the plaintiff’s bar can access and use in their lawsuit.
Even if the settlement agreement says you cannot disclose the amount of the settlement, etc., all of the information that was learned prior to the settlement is placed in the repository so a quick search can dig up the issue and how to win.
So once a company and a product end up in the system, the issue of foreseeability might be moot, but we don’t need to hand over the information to begin with.
Warnings Can Help Address Foreseeability
If the knowledge is out there that it is foreseeable that a product can fail or should not be used in a specific way, another way to beat the plaintiff is to warn the consumer.
Immediately place information on the website that says:
Do not use the product this way; it may fail.
Be specific. Show examples, etc.
Manufacturers cringe when they think they need to do this, but most consumers will actually appreciate the knowledge, and courts love it.
Unexpected Uses of Products
The hardest way to look at foreseeability is in using the product in ways the manufacturer never envisioned.
A product is designed to do something. The engineers, workers, and marketing team focus on making the product a success in the thing the product was designed to do.
There are two things a manufacturer has to do to stay on top of uses of the product in ways the manufacturer never thought of or intended.
First, constantly keep testing, reviewing, and having third parties examine the product to see who would use or could use the product.
Second, constantly scan social media and athletes for information about the product and how it is being used.
Once a use is discovered that was not intended, then the manufacturer must examine all of the consequences of using the product in that new way.
Will it fail?
Can it cause an injury?
What are the effects on the product and on the other interfaces the product has?
Does this require new warnings, modification of the product manual, or getting information to the public on what this use might do?
Consider the Downstream Effects
The next step is to understand all of the downstream effects of using the product in a different way.
Will this cause harm to the user, to the interface, to anyone?
A great example of this is guides descending fixed ropes with clients who will attach an ascender to the fixed ropes.
Their clients would be roped together, with the guide being the last in line. The clients would not be attached in any way to the fixed ropes; the ascender would be on the fixed ropes facing downhill, and the guide would hold the ascender open with their thumb.
If a client or the guide fell, the guide would release the gate, and the ascender would catch the guide and clients.
The issue was that ropes, usually partially frozen, might not be able to sustain the shock loading of the ropes holding three to five people.
This, in many cases, has caused the rope to break when the ascender grabs the rope and places such a large load instantly on the ropes.
In this case, the ascender did not fail.
However, using the ascender improperly did result in injuries to people.
Consequently, notices should go out to guide companies, climbers, and the public that using the ascender in this manner is not allowed and, if done so, can result in injuries.
The Bottom Line
Foreseeability is a complicated legal issue, and this just brushes the surface of the definition and how foreseeability works.
The important part is that if you can think about a product your manufacturer made, or you hear about someone using your product in a way you did not intend, you need to respond.
About the Author
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters, both as businesses and individuals, and the products they use for their business.
He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries.
Contact Jim at Jim@Rec-Law.us.
Jim is the author or co-author of six books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law.
To see Jim’s complete bio, visit the Jim Moss Bio page. To see his CV, visit the Curriculum Vitae page.
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Author:
Outdoor Recreation Insurance, Risk Management and Law
Email: Jim@Rec-Law.US
By Recreation Law
James H. Moss
