Washington Court allows claim against Amazon based on plaintiffs' decedent's suicide -- UPDATED

February 22, 2026

 Long time readers of this blog may remember that I have posted a number of times about cases dealing with whether Amazon can (or should) be considered a "seller" for purposes of product liability law.  (Go here and scroll down.)

The most recent of those cases involved that claims of the families of three teenagers and a young adult who died after ingesting sodium nitrite purchased on Amazon. The trial judge denied a motion to dismiss the complaint but the Washington Court of Appeals reversed, finding that the plaintiffs could not support the element of duty because the decedents had intentionally misused the product.

I am writing about this today because earlier this week, the Washington Supreme Court unanimously reversed holding that the plaintiffs could continue to pursue their claim against Amazon.  You can read more about the case in Courthouse News Service, and you can read the decision of the court here.

In deciding the case, the court rejected the so-called "suicide rule" which is still in place in many jurisdictions and according to which the act of suicide is, as a matter of law, a superseding cause that defeats the cause of action.  The court's rejection of this rule follows a recent ruling in Nevada and what appears to be a new trend on the issue. Go here for more on that story.

UPDATE (3-12-26):  Courthouse News Service has a story on the case here.

Parents sue ChatGPT Company alleging the AI program helped their son commit suicide

 The parents of a 16-year-old who died by suicide sued OpenAI last week, claiming that ChatGPT encouraged their son to take his life and even provided detailed instructions on how to do so.  

Above the Law has a good comment on the issues raised by the case here.  On the one hand, it points out that "[w]hile the complaint criticizes ChatGPT for answering Raine’s questions about the technical aspects of various suicide methods, these read like simple search queries that he could’ve found through non-AI research. They’re also questions that someone could easily ask because they’re writing a mystery novel, so it’s hard to make the case that OpenAI had an obligation to prevent the bot from providing these answers. The fact that ChatGPT explained how nooses work will get a lot of media attention, but it seems like a red herring because it’s hard to imagine imposing a duty on OpenAI to not answer technical questions."

On the other hand, it discusses how troubling the AI's conversations about the child's actual intent to take his own life.  You should read the comment to see the details.

Courthouse News Service has more on the story here.

This is an interesting case, and it is worth keeping an eye on, but the first obstacle the plaintiffs will have to deal with is the fact that the defendant will likely argue that they can't meet the element of proximate cause because suicide is usually considered to be a superseding cause.

Panera Halts Sales of “Charged” Lemonade Drinks Following Lawsuits Claiming Caffeine Overdose Deaths -- UPDATED

May 13, 2024  [Update at the end below]

Last December  I reported on several lawsuits filed against Panera Bread Co. alleging it should be liable for the deaths of customers who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.  See here and here.

Today, I am writing to report that Panera has decided to stop selling the product in question.  As reported in AboutLawsuits.com, 

Reports suggest that Panera Bread will no longer sell its “charged” lemonade products, after at least two consumer deaths were linked to excessive levels of caffeine in some of the drinks, leading to wrongful death lawsuits by the families.

Panera Charged Lemonade was introduced in 2022, featuring high levels of caffeine marketed as an alternative to coffee or energy drinks. However, at least two wrongful death lawsuits were filed against Panera last year, claiming that high levels of caffeine in the beverage led to fatal heart attacks or other heart complications.

While Panera claimed their charged lemonade as plant-based and clean, a 30oz lemonade could contain up to 390 milligrams of caffeine, which is the equivalent of four cups of coffee or three-and-a-half 12-oz cans of Red Bull. In addition, since Panera’s employees mix the lemonade, caffeine levels can vary drastically in different drinks, potentially providing potentially dangerous amounts for some consumers, especially those with certain pre-existing conditions.

Various news reports now indicate that employees are now being told that Panera Charged Lemonade will be phased out, and the chain is no longer ordering some key ingredients used to mix the products in stores.  

Go here for the full story. 

UPDATE 10/13/24:  The Hill is reporting that Panera has settled one of the lawsuits.  See here.

Study on the dangers of "energy drinks"

 A few minutes after I posted the news that Panera would stop selling its "charged lemonade," I saw this story on the dangers of other so-called "energy drinks":  Energy drinks show ‘damaging’ effects on young adults, studies show.

This is not a new issue. Manufacturers of highly caffeinated drinks have known about this problem for a long time. If you click here, you will be taken to a page with at least 20 stories I have published on the subject, dating back to 2009.  

Panera faces second wrongful death lawsuit related to its ‘Charged Lemonade’

 About a week ago I reported that a recently filed lawsuit against Panera Bread Co. alleges it should be liable for the death of a young woman who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.  

Now comes news that a second wrongful death lawsuit (on behalf of the beneficiaries of a 46-year old man) based on similar allegations has been filed in Delaware.  The Hill has the story.  NPR also has coverage.

Federal Court denies motion to dismiss claim against Amazon for damages caused by product sold by a "third party seller" through Amazon's website

Two years ago I reported that a California Appellate Court held that Amazon can be liable in products liability for products sold by other vendors through Amazon.  See here.  A few months later, the Texas Supreme Court reached the exact opposite result.  See here.

I am writing about this today again because a a federal court in Louisiana recently declined to issue judgment in favor of Amazon on its argument that it is not liable for products sold by about two million “third party sellers,” such as the one that sold a defective battery charger that caused a deadly house fire resulting in this wrongful death lawsuit.  You can read the decision here.

Panera Bread Co sued for wrongful death allegedly caused by Panera's highly caffeinated lemonade

December 4, 2023

Back in 2012-2013 there was a lot of discussion on possible claims for damages caused by "high energy" (read: highly caffeinated) drinks.  Go here and scroll down to refresh your memory.

The topic is now back in the news.  A recently filed lawsuit against Panera Bread Co. alleges it should be liable for the death of a young woman who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.  

The Legal Eagle YouTube channel has a detailed explanation of the case.

UPDATE 12/10/23:

Additional coverage on the case at The Legal Examiner 

A second wrongful death lawsuit has been filed in Delaware.  See here.

Oklahoma Supreme Court reverses judgment against opioid manufacturers in public nuisance case; but lower court in Ohio finds against pharmacies

About three weeks ago, (on November 7) I posted a story about a decision in California dismissing a claim for public nuisance against several opioid manufacturers and distributors.  Two days after that, the Supreme Court of Oklahoma announced a decision reversing a trial court's judgment against opioid manufacturers in a similar case.  The case is State ex rel. Hunter v. Johnson and Johnson and you can find it here.

These two decisions resulted in an article in the NY Times with the very descriptive title "The Core Legal Strategy Against Opioid Companies May Be Faltering."  You can read it here.

Yet, a couple of weeks later a jury in Ohio found that three retail pharmacy chains created a public nuisance by recklessly distributing vast amounts of pain pills in two Ohio counties.  See here.  I have no doubt this verdict will be appealed. 

Evidently, the litigation over the opioid crisis is a big deal.  There are thousands of pending cases and how each is decided ultimately will influence how the issue is addressed in other jurisdictions.  

If we go by history, the use of public nuisance as a way to address social problems created by distribution of products has not been successful.  The vast majority of cases that attempted it failed, including cases against tobacco companies, lead paint manufacturers and gun manufacturers and distributors.  For this reason, the cases against opioid manufacturers are going to be difficult to win.  But it is possible courts will change their view on this.  I am very interested in following this story which will not go away any time soon.

Here is a short PBS News report that summarizes many of the issues involved in the current litigation.  (While you are at it, if you are interested, you can find many other videos on the topic of the opioid crisis on YouTube.)

More coverage on the verdict against the pharmacy chains here:  AboutLawsuits.com, ABA Journal, NPR, The Guardian, and Courthouse News.

Judge recently issued a "tentative decision" against the plaintiffs in California case related to opioid crisis

If you have been watching "Dopesick" on Hulu or "Goliath" on Amazon Primes, you might be disappointed to hear that this week a judge in California issued a "tentative decision" holding that a lawsuit seeking to hold drug companies liable for the opioid crisis must fail because the plaintiffs didn’t show that false and misleading marketing caused an increase in medically inappropriate prescriptions.  The defendants included Johnson & Johnson, Teva Pharmaceutical Industries, Endo International and AbbVie Inc.’s Allergan unit.

More than 3,300 lawsuits have been filed by state and local governments over the opioid crisis. In the only other case that went to trial, an Oklahoma judge found Johnson & Johnson liable for $465 million. 

The ABA Journal has the full story here.  Reuters has more here, and NPR's coverage is here.

Texas Supreme Court holds that Amazon can not be held liable for injuries caused by products sold by others through Amazon

Back in May I reported that a California Appellate Court held that Amazon can be liable in products liability for products sold by other vendors through Amazon.  As this happened, the exact same issue was certified to the Texas Supreme Court, and now we have a ruling.

In direct contrast with the California Appellate Court, the Texas Supreme Court held that Amazon can NOT be liable because it does not act as a seller.  

If you are looking for good topic for a law review article, here you go!  Now you have two totally opposite views on exactly the same issue.  

In both cases Amazon argued that it should not be liable to the consumer because it operates only as a marketplace, not as a seller in the chain of commerce.  The court in California did not agree, but the court in Texas did.  

The California court found that Amazon operated as a seller, or at least a distributor in the chain of commerce, rather than as a neutral "mall".  Amazon handled all product advertising, payment processing, and communication between the buyer and the manufacturer.   Also, Amazon may be the only member of the distribution chain reasonably available for an injured consumer to recover damages.

The Texas court held that Amazon did not qualify as a seller because it was not engaged in the business of distributing products through ordinary sales or placing products in the stream of commerce through non-sale commercial transactions, even though Amazon controlled the process of the transaction and the delivery of the product.

It is difficult for me to understand how someone who "controls the process of the transaction and delivery of the product" is not placing the product in the stream of commerce, so my best guess is that the issue comes down to the phrase "ordinary sales."  

Courthouse Network News has a short analysis of the case here.

Snapchat Ends 'Speed Filter' That Critics Say Encouraged Reckless Driving

 Last month I reported that the 9th U.S. Circuit Court of Appeals had issued an opinion holding that the parents of a teenager killed in a traffic accident could sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

Today I am writing about this because NPR is reporting that Snapchat is eliminating a feature known as the "speed filter" that lets users capture how fast they are moving and share it with friends. 

You can read the story on NPR here.

Trial related to destroyed frozen embryos raises interesting questions -- UPDATED again

This story is updated below, at the end of the original post

I just read a story on Courthouse News on a trial in which the plaintiffs are suing the manufacturer of cryogenic tanks that somehow failed causing the destruction of thousands of frozen eggs and embryos, which according to the plaintiffs dashed some families’ only hope of having biological children.

The plaintiffs' claim is for product liability based on the alleged defective design of the tanks.  The defendant, however, is apparently going to argue that the tank's failure was due to the misuse of the product by the Fertility Center which used it.  This is the first interesting point in the case because that argument is essentially claiming that the conduct of the Fertility Clinic was an unforeseeable intervening (and therefore superseding) cause.  

Yet, the most interesting question raised by this case relates to the injuries claimed by the plaintiffs.  The story states that the claims "for the loss of eggs and embryos" were sent to private arbitration.

So, my first question is what is a claim for the "loss of" the eggs and embryos?   I am assuming "embryos" refers to fertilized eggs, while eggs are not fertilized.  If that is the case, there can be no claim for wrongful death for the loss of the eggs in any jurisdiction I know of.  And for the loss of the embryos, there can be a wrongful death claim only in jurisdictions that recognize that life begins at conception for purposes of the wrongful death act.  So I wonder if the claim is not for wrongful death but for something else?  Is it just a contracts dispute then?  I just don' know.

On the other hand, maybe the claim is for emotional distress, but that claim would depend on the jurisdiction's approach to those claims?  If the jurisdiction requires impact, I don't think there is support for the claim, for example.  Also, the facts don't seem to fit a claim for emotional distress of a bystander.  

Since the case is already at trial, I guess these questions were resolved already through motions to dismiss, etc.  But I wonder what the answers are.  

UPDATE May 30, 2021:  Courthouse News is following the trial closely.  This week they published the following stories:

On May 26:  Lab Workers Were ‘Devastated’ by Tank Failure That Destroyed Human Embryos

On May 27:  Tank Manufacturer Accuses Fertility Clinic of Falsifying Data in Frozen Eggs Trial 

June 6: Fertility Patients Describe Sadness and Anger After Freezer Tank Failure

June 9: Jurors Asked to Award $30 Million for Lost Eggs and Embryos

June 10: Jury Finds Tank Maker Responsible for Lost Eggs and Embryos, Awards $15 Million

June 12: Loss of Embryos and Eggs at Fertility Clinic Leads to Groundbreaking Multi-Million Dollar Verdict in California

June 20: $15 Million Verdict Against IVF Cryopreservation Tank Maker Is Big News

Parents of teen who committed suicide sue Snapchat and other "apps" developers

A few days ago I posted a news story about a decision against Snapchat.  Yesterday, I posted a story about a new decision involving a suicide.  Tragically, today's story combines both themes.

Law & Crime is reporting that the mother of a teenager who took his own life after months of online harassment is suing Snapchat and the makers of third-party anonymous messaging apps YOLO and LMK, alleging that the products violated consumer protection laws by failing to comply with their own terms of service that promise safeguards against cyberbullying.

You can read more on the story and the complaint itself here.

Court of Appeals for the 9th Circuit recognizes cause of action against Snapchat

A three-judge panel of the 9th U.S. Circuit Court of Appeals recently decided that the parents of a teenager killed in a traffic accident can sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

The decedent and two other teenagers were driving at over 120 miles an hour and wanted to capture the experience using an app feature called "speed filter" which documents real-life speed.  After one of them opened and started using the app, the driver lost control of the car and hit a tree.  All three died in the crash.

This type of allegation is not new.  It was the same type of allegation used in cases involving people playing "Pokemon Go" (remember that craze?). I posted a podcast on those claims back in 2016 here.

Other cases have found against the sender of a text which distracts a driver.  For example, see here, and here.

So, the plaintiffs' argument that the app "entices" young people to do stupid or dangerous things is not new; but it is not an easy one.  First of all, there is the issue of whether the conduct of one of the kids should be considered a superseding intervening cause.  Was the goal of the joy ride to use the app?  Or did they decide to use it after they were already driving fast?

Also, and even more problematic for the plaintiffs is the issue of comparative negligence, or assumption of the risk (if the jurisdiction still recognizes it as a defense).  If the jurisdiction is a modified comparative negligence jurisdiction, the defendants will argue that the plaintiffs' negligence should defeat the cause of action. 

What is most interesting about this case is that the plaintiffs argued the case as a products liability case while the defendant tried to defend the case by arguing it is protected from liability by the Communications Decency Act.

According to Courthouse News, the Ninth Circuit’s rejection of the defendant's attempt to hide behind the Communications Decency Act is the second opinion by an appellate court.  The other one was the Georgia Court of Appeals which rejected virtually identical arguments made by Snap in another Speed Filter case.  NPR has more on the case here.

The case is called Lemmon v. Snap, Inc, and you can read the opinion here.

California Appellate Court finds that Amazon can be liable in products liability for products sold by other vendors through Amazon

Last year I reported on a recently decided case in California finding that Amazon.com could be liable for products liability.  See here.  Earlier this year, I reported that the Texas Supreme Court heard oral arguments on a similar case.  See here.

Today, I am reporting that an appellate court in California recently decided that Amazon can be held liable for injuries caused by product bought from independent third party sellers through Amazon.  The case is called Loomis v. Amazon.com, and you can read the opinion here.

In Loomis, the plaintiff bought a product from a manufacturer who paid Amazon a "subscription" to sell products in Amazon and a small fee (15% of the sale price).  Amazon argued that it should not be liable to the consumer because it operates only as a marketplace, not as a seller in the chain of commerce.  The court didn't buy it (excuse the pun!).

The court found that Amazon operated as a seller, or at least a distributor in the chain of commerce, rather than as a neutral "mall".  Amazon handled all product advertising, payment processing, and communication between Loomis and the manufacturer, which was not allowed to speak with her directly.  Also, Amazon may be the only member of the distribution chain reasonably available for an injured consumer to recover damages.

Short article on the dangers of driverless cars

 The National Law Review has published a short comment on "the dangers of driverless cars."  You can read it here.

Texas to decide whether Amazon can be held liable in products liability claim caused by product sold by a third party on its website

Back in August of last year, I reported that an appellate court in California found that Amazon.com could be sued for products liability for the value of injuries caused by defective goods sold on its website by third-party vendors.  See here.

Today I am writing to let you know that the same issue is now before the Texas Supreme Court.  Courthouse News Service is reporting that the issue is before the court in a case centered around a remote control battery swallowed by a 19-month-old child.  Go here for more information.

Recent law review article compares cost-benefit analysis and consumer expectation as the tests for determining design defects

In his article An Essay on the Quieting of Products Liability Law, 105 Cornell Law Review 101 (2020), Aaron D Twerski, one of the reporters of the Restatement (Third) of Torts: Products Liability, compares the difference between the risk-utility test applied in most states (which relies on having the plaintiff prove a "reasonable alternative design (RAD)") and the consumer expectations test followed in 17 jurisdictions to determine if a product has a design defect.   He concludes that, regardless of the approach used, the vast majority of cases include proof of a RAD.

Twerski theorizes that using proof of a RAD: 1) tells “a far more compelling story” than consumer expectations; 2) relates to fault which, in turn, leads to higher damage awards; 3) may be needed as a substitute if a judge denies a “consumer expectations” instruction, and 4) supports the claim that a product disappoints consumer expectations.  

For a summary of the article go here.

California appellate court finds that Amazon can be sued for products liability

In an important new decision, a California state appellate court recently held that Amazon is subject to product liability claims for defective goods sold on its website by third-party vendors. The case is called Bolger v. Amazon and you can read the opinion here.

The key to why this is important is that last phrase: "third party vendors."  Amazon did not manufacture or retail the product.  It merely provided a space for the retailer to "connect" with its buyers.  For that reason, Amazon argued that it was not part of the chain of distribution, as that concept is typically used in products liability cases.  But the court held that “Whatever term we use to describe Amazon’s role, be it ‘retailer,’ ‘distributor,’ or merely ‘facilitator,’ it was pivotal in bringing the product here to the consumer.”

This case follows the first successful product liability case against Amazon (in Pennsylvania) which was then appealed to the Third Circuit Court of Appeals and remanded to Pennsylvania Supreme Court this past June.  That case is now pending.

For more on Bolger v. Amazon, go to Courthouse News Service, LawStreet, and the ABA Journal.

Court allows former NFL player lawsuit against helmet manufacturer to proceed

The First District Appellate Court of Illinois held in Nakamura v. BRG Sports, LLC that a former NFL player’s personal injury suit against his helmet manufacturer stemming from a severe concussion the player suffered was allowed to proceed. 

The decision was based only on an issue of whether the case was barred by the statute of limitations, so it will be very interesting to see how far the case goes since it is rare for sports participants to succeed in claims for injuries suffered while participating in the sport.  And given what we now know about concussions in sports like football and hockey a successful claim against a helmet manufacturer for an injury related to a concussion in a football game could open the doors to a floodgate of litigation.

Go here for more on this story.