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.

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.

NJ Supreme Court to decide whether defendant has a duty to warn about asbestos exposure due to a replacement part in its product

The New Jersey Supreme Court has agreed to hear an appeal that will decide a manufacturer’s liability for asbestos-containing replacement parts that it did not manufacture or sell.  The Supreme Court granted certification after the Superior Court, Appellate Division, held that a manufacturer has a duty to warn of risks not just from the products it manufactures or sells, but also from asbestos-containing replacement parts necessary for its products to function.  You can read the lower court opinion here.

Here is a link to a short article that summarizes the possible approaches to the question and the issues involved.

Court finds Amazon can't be responsible as "seller" in a product liability claim

About Lawsuits.com is reporting that a federal judge has ruled that Amazon.com cannot be held liable for injuries caused by third party products the company sells on its website because, according to the court's memorandum opinion Amazon did not meet the state’s definition of a “seller.”  The court held that Amazon is merely a marketing place for third-party vendors, and not the seller or manufacturer, stating, among other things, that

“[l]ike an auctioneer, Amazon is merely a third-party vendor’s ‘means of marketing,’ since third-party vendors—not Amazon—’cho[o]se the products and expose[] them for sale by means of’ the Marketplace,” Judge Brann stated. “Because of the enormous number of third party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly ‘not equipped to pass upon the quality of the myriad of products’ available on its Marketplace.” 

This is interesting because, as Amazon users probably have noticed, Amazon seems to sell products in a number of different ways.  As far as I can tell, these are some of the categories:

1.  Amazon products sold by Amazon.

2.  Products that are sold by Amazon but are not Amazon products.

3.  Products are that not Amazon products that are sold "through" Amazon.  If I understand it correctly, products in this category are ordered through Amazon, sold by someone else, but the order is "fulfilled" by Amazon.

4.  Products that are ordered through Amazon, sold by someone else, and the order is fulfilled by that someone else.

I understand saying that Amazon is not a seller of a product in the last category.  But I think Amazon is a seller in the first three.

Is a dog a product?

The Abnormal Use blog is reporting on an interesting story about a lawsuit against a Humane Society pet shelter based on the fact that a dog adopted from the agency bit a 15-month old child. What is interesting is that the cause of action is based on product liability principles.  The case apparently argues that the agency failed to warn the Greenes of the risks of transitioning a dog from a shelter to a home and of a dog’s potential dangerous propensities. 

Although it might seem odd to think of a dog as a product at first - mostly because it is not "made" or "manufactured" - dogs are "things" when it comes to the law.  Most jurisdictions will not grant more than their market value in a claim against someone who kills a pet, for example.  Also, animals of all sorts are bought and sold in the market, and not all as pets.  For this reason, I would not be surprised if there are other cases that consider animals as products in the context of products liability, although I can't say I remember having seen any lately other than cases involving dead animals, aka food for humans.

Yet, I agree with Abnormal Use that there does not seem to be a need to use strict liability to support the claim.  A simple negligence claim for lack of proper warnings would be sufficient. 

If the claim were to be argued as a negligence claim for failure to warn, though, there is another interesting issue looming over the case:  whether the defendant should have warned the consumer that the dog was a pit bull mix.  This opens the door to the debate on whether knowledge that the dog was of a particular specific breed creates a duty to warn - something I have written about before many times.  The generally accepted view is against imposing such a duty, but there are cases that have recognized it and there is credible (at least to me) evidence that suggests the argument has some validity to it.

The case was just filed recently, and my guess is that like most cases it will be settled quietly.  But who knows, maybe it will work its way through the courts and bring up the issues to the forefront again.  We'll have to wait and see.

Connecticut rejects Restatement 3d- Products Liability

In what some are calling the most important Connecticut tort-law decision in decades, last month the Connecticut Supreme Court declined to adopt the Restatement (Third)'s approach to product liability design-defect claims and “reaffirm[ed] its allegiance” to a “true strict liability” standard under §402A of the Restatement (Second).  The case is called Bifolck v. Philip Morris, Inc. (Deb 29, 2016).  The TortsProf Blog has more on the story here. Connecticut is thus the most recent of a number of states to have rejected the Restatement 3d's approach. 

Podcast: Challenges of self driving cars

The program Case in Point (Univ. of Pennsylvania Law School) has posted a new 20 minute podcast on "Challenges of Self-Driving Vehicles." 

Tennessee Court of Appeals rejects argument that some dogs are dangerous by nature, which would eliminate need to show knowledge of dangerous propensity

Long time readers of this blog might remember my discussion and article on the debate on whether courts should recognized a cause of action against the owner (or possessor) of a pit bull even if there is no evidence that the defendant knew or should have known that the dog had dangerous propensities.  Although it is not the rule in many jurisdictions any more, this requirement is very common.

Back in 2012, this was a very hotly debated topic because a court in Maryland decided that a plaintiff could support a claim against the owner of a pit bull based on the argument that the defendant knew the dog was a pit bull.  (See here.)  In other words, the court held that the nature of the breed was such that simply knowing the dog was of that breed meant the defendant knew or should have known the dog was dangerous. Eventually, the Maryland legislature adopted a statute that changed the state of the law.  (See here, here and here.)  You can find a copy of the article I wrote on the subject here (which I will be updating soon with a copy of the final, published version).

The issue was again in the news recently, this time in Tennessee. As reported in the TortsProf blog, the Tennessee Court of Appeals affirmed dismissal of a civil claim which asked the court to create a “big dog exception” to the notice requirement. 

In the Maryland case, the plaintiff based the argument on the arguably aggressive nature of the breed of the dog.  In this case, the plaintiff based the argument on the size of the breed, arguing that “it is common knowledge that Great Danes are an extraordinarily large breed” and “that its size alone placed the Defendant on notice of any dangerous propensity.”   The plaintiff also argued that “Great Danes are a suspect class of dog” because they are “a large and naturally dangerous animal, based on size, weight, and strength.”

The court rejected the argument, holding that "we, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed" and affirmed the summary judgment based on the lower court's finding that there was no evidence that plaintiff knew or should have known that the dog had any dangerous propensities.

Florida Supreme Court rejects the Third Restatement's approach to design defects in product liability cases

I have to confess that I missed this important development when it happened back at the end of October but I am now finally getting to it, so better late than never, I guess.

In a case called Aubin v. Union Carbide Corp., 177 So.3d 489 (Fl 2015), the Florida Supreme Court rejected the Third Restatement’s formulation of design defects and, specifically, the notion that a product can’t be considered defective unless the plaintiff can show a reasonable alternative design.  The Court preferred to retain the approach of Restatement (Second).

In this case, even though the Court had adopted and applied the consumer expectation test in prior cases, the lower court adopted the Third Restatement’s formulation of the risk utility test as the legal standard for a design defect claim.  According to this standard, as the Court explained, “the plaintiff must demonstrate that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Alternatively, the plaintiff could try to argue that the product design is “manifestly unreasonable,” which in turn would require the plaintiff to show that “the extremely high degree of danger posed by its use ... so substantially outweighs its negligible social utility that no rational, reasonable person, fully aware of the relevant facts, would choose to use ... the product.”

Citing a number of cases from other jurisdictions that also rejected the Restatement (Third), the Court then went on to reject the Restatement (Third), among other reasons because

(1) By introducing foreseeability of the risk to the manufacturer as part of the calculus for design defect and requiring proof of a “reasonable alternative design,” the Third Restatement reintroduces principles of negligence into strict liability.  For this reason, according to the Court, the Third Restatement is inconsistent with the rationale behind the adoption of strict products liability.

(2) Besides shifting the emphasis away from strict liability principles, the Third Restatement's risk utility test imposes a higher burden on consumers to prove a design defect than exists in negligence cases – the antithesis of adopting strict products liability in the first place – because the Third Restatement places upon the plaintiff an additional burdensome element of proof, requiring the injured consumer to step into the shoes of a manufacturer and prove that a reasonable alternative design was available to the manufacturer. 

(3) The Third Restatement, in some instances, could insulate a manufacturer from all liability for unreasonably dangerous products solely because a reasonable alternative design for that type of product may be unavailable even though “in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available.”

(4) Many states have expressed concerns about, or disapproved of, the Third Restatement, as it pertains to strict products liability.

(5) The requirement of a reasonable alternative design in the Third Restatement has been harshly criticized and has not become the rule in the majority of jurisdictions.  A majority of jurisdictions do not require a reasonable alternative design in product liability actions. 

(6) The Restatement is not a codification of law or necessarily the consensus on the best policy for courts regarding the proper legal standard for strict liability in products liability cases. In fact, while the Third Restatement was intended to restate the law as decided by state courts and state legislatures, various courts have criticized its discussion of strict products liability, emphasizing that it “goes beyond the law” because “[r]ather than simply taking a photograph of the law of the field,” the Third Restatement attempts to create a framework for strict products liability by urging the adoption of the reasonable alternative design standard and an exclusive risk/utility analysis, notwithstanding that the majority of jurisdictions in this country do not require a reasonable alternative design in strict products liability actions.

(7) The Third Restatement is contrary to Florida’s prior precedent. As explained by the Court, “[t]he important aspect of strict products liability that led to our adoption [of the Restatement (Second) in a precedent case] remains true today: the burden of compensating victims of unreasonably dangerous products [should be] placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product. Increasing the burden for injured consumers to prove their strict liability claims for unreasonably dangerous products that were placed into the stream of commerce is contrary to the policy reasons behind the adoption of strict liability. . .”

New information on breed specific regulations

The website Dogsbite.com, a very good source of information related to regulation of dogs and cases involving dogs, has released a new FAQ section on breed specific regulation.  Go here for links to a lot of information including the effectiveness of these ordinances, which breeds are involved and the three most common types of ordinances.

NY Court of Appeals reaffirms rule that immunizes dog owners for injuries caused by their negligence in handling their dogs

Eric Turkewitz, of The New York Personal Injury Law Blog, has a very interesting post on a recent decision by the NY Court of Appeals (the highest court in the state) on a topic I have written about in the past - the possible liability of a dog owner.

The facts of the case are relatively simple.  The defendant allowed his dog to run around in Central Park, and later called it to come back.  The dog bolted across the road exactly as commanded but unfortunately into the path of a bicyclist who suffered an injury as a result.  The plaintiff sued the dog owner for negligence.  Simple enough: the owner was negligent in either allowing the dog to run unleashed or in the way he called it back without taking precautions, and caused an injury as a result.

Prima facie case, right?   Not so in New York, where courts, for some reason, do not recognize causes of action for negligence in cases of injuries caused by pets, although they do in cases of injuries caused by other animals.

Instead of recognizing how illogical the current state of affairs is, however, the court reaffirmed its position and decided to continue to adhere to a rule that essentially provides immunity to dog owners who cause injury with their negligent handling of their animals.

The case is Doerr v. Goldsmith  and it is available here.  In his post, Turkewitz briefly comments on the concurring opinion and one of the dissenting opinions and I agree with him entirely.  The concurring opinion's reasoning is unpersuasive and the dissenting opinions are much more reasonable, logical and consistent with basic principles of tort law.  As Chief Judge Lippman, in dissent, points out, the position taken by the court, "serve[s] only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident."

Also, as pointed out by Judge Fahey, who also dissented, "We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."

I agree.

Pennsylvania Supreme Court rejects Restatement Third of Products Liability

About three weeks ago, the Pennsylvania Supreme Court issued an important opinion in which it rejected adopting the language of the Restatement Third on Products Liability.  The court decided to retain its analysis based on the principles and case law on Section 402A of the Restatement Second instead.  This includes the choice of arguing/proving a design defect based on a consumer expectations analysis or a cost-benefits analysis.   You can read the opinion here and the concurring opinion here.  (Thanks to the TortsProf blog for the links.)

Max Kennerly, of Litigation and Trial, has a nice comment on the opinion here, and he provides links to shorter comments here, here and here.

Video Quiz: Assumption of the risk?

You may remember my discussion of the case involving a claim against the Kansas City Royals' mascot for hitting a fan with a flying hot dog (go here and here for my most recent comments on the case).  The claim raised the issue of whether getting hit by a flying hot dog is an inherent risk of the sport, which spectators assume when they go to the games.

There are also other cases out there discussing whether fans can bring a cause of action when mascots touch them, hug them or sit on their laps as some are known to do.

Now I have a new video quiz for you on a similar question.  What if the mascot is not a person in a costume but an actual animal?  

If you watched football yesterday, you may have seen this video of the Seattle Seahawks mascot flying off to the stands and sharing a moment with the fans.  Assume for the moment that the bird's talons cause an injury to the fan.  Would he have a cause of action for strict liability because the bird is an animal?  Or does the fan assume the risk by going to the game?  Does the team have a duty to protect fans from attacks by their mascots?  

Here is the video (if you can't see it below, go here):

Link to my article on strict liability approaches in cases of injuries caused by dogs, particularly by pit bulls

Long time readers of this blog will remember that I have been following the saga that started with the Maryland Court of Appeals decision in Tracey v. Solesky, in which the court changed the elements of a claim based on the fact that the dog in question was a pit bull. The decision generated a lot of debate and, although it took the legislature two years to do it, a bill was finally approved a few months ago to abrogate its holding.
 
I just finished a draft of an article in which I take a closer look at the decision, the different approaches to strict liability in dog cases and the consequences of the recently approved bill.
 
You can acces the full article here. I welcome your comments. Here is the abstract:
 

Two years ago, the Maryland Court of Appeals issued an opinion in a case called Tracey v. Solesky in which it modified the common law of the state related to strict liability in cases involving injuries caused by dogs. Although Solesky was neither a big departure from the applicable law at the time nor an adoption of the alternative, and more prevalent, view in other jurisdictions, the Maryland legislature eventually abrogated its holding entirely. As a result, the current applicable doctrine is a collage of different approaches and it is difficult to see how it protects victims of dog attacks more than they were protected before Solesky. This article reviews the tort law doctrines that operate to manage the costs of injuries caused by dogs and discusses the consequences of the approval of the new statute in Maryland. It concludes that instead of reverting back to the common law predating Solesky, a more careful balancing of the interests involved should have resulted in either adopting the prevalent view in the majority of jurisdictions or in an understanding of how Solesky actually advanced a better public policy than the common law it modified.

 

Maryland adopts new bill in reaction to Tracey v. Solesky

Two years ago I reported (here) that the Court of Appeals of Maryland issued an opinion in a case called Tracey v. Solesky holding that the owner of a pit bull could be held strictly liable for the injuries caused by the dog.

Soon thereafter pit bull owners and their advocates persuaded state legislators to convene a task force aimed at overriding the decision of the Court of Appeals.  See here.

However, after a very long process, the attempt by the legislature to enact a statute to override the holding in Tracey appeared to have failed. Both the House and the Senate approved statutes but they did not agree on the approach to use to deal with the issue.  A committee was formed to reconcile the bills, but the resulting compromise bill did not have the votes to pass.

Eventually, however, a new bill was agreed upon and it was recently signed into law.  Section 2 of the bill specifically states that "it is the intent of the General Assembly that this Act abrogate the holding of the Court of Appeals in Tracey v. Solesky, 427 Md. 627 (2012)."  To achieve this, the statute does two things:  it creates a rebuttable presumption that in cases where a dog causes an injury to another the owner knew or should have known that the dog had vicious or dangerous propensities and it specifically says that if the defendant is not the owner of the dog, the law that applies is the law that was applicable before Tracey was decided.

What I find interesting about this act, though, is that, for cases against dog owners, it has adopted a standard that is more favorable to plaintiffs than it was pre-Tracey.

The law used to be that a plaintiff has the burden to show either negligence or that the defendant knew or should have known of the dog's dangerous propensities.  What Tracey held was that a plaintiff only had to prove the animal was a pit bull to meet the requirement of proving that knowledge.

Instead of scaling back the reach of the Tracey ruling, the new bill actually appears to expand it.  Now all dog owners are presumed to have knowledge and the burden would shift to them to prove the negative. After Tracey, pitbulls were presumed to be inherently dangerous; now all dogs are presumed inherently dangerous.

For a very complete summary of the issues involved go here.

Once again, wolf-dogs in the news

Back in 2009 I first heard of so called "wolf-dogs" a hybrid dog breed that had apparently gained some popularity in some parts of the country.  See here.  I wondered whether a wolf-dog would be considered a "wild" or "domesticated" for purposes of strict liability in tort law.  More recently, the issue came back when I first heard of domesticated foxes (here).

Now, just days before I am due to start discussing strict liability for injuries caused by animals in my Torts class, I see that wolf-dogs are back in the news.  A short article in Smithsonian magazine reports that "a surplus of unwanted wolf-dogs—hybrids that are more domesticated than wild wolves but less tame than dogs—is overwhelming authorities in New Hampshire."  Apparently, owning a wolf-dog is illegal in the state, but no one seems to be making sure that law is upheld. (Interestingly, the subtitle of the article is "Are they domesticated pets or wild animals?", the very question I have asked in  2009 when I first hear of them).

I have not seen any reported cases of injuries caused by these types of dogs, so please e-mail me if you know of any.

The Smithsonian article links to a longer article on New Hampshire Public Radio. 

Connecticut does not find horses are inherently dangerous

While Maryland is still discussing whether dogs are inherently dangerous (see here), the Connecticut supreme court has issued a decision on the possible liability for injuries caused by horses.  The court affirmed a lower court decision that had ruled that horses are, by nature, vicious animals.  However, while it affirmed the lower court's decision, the court did not find that horses are, by nature, vicious animals.

The question for the court was whether a defendant has a duty to take reasonable steps to prevent animals from causing foreseeable injuries.  Thus, the case involved a negligence claim, not a strict liability issue.  In ruling that a defendant does have a duty to prevent foreseeable injuries, the court simply applied the traditional rule that applies in all negligence cases.  The case is called Vendrella v. Astriab Family Limited Partnership.  You can read the opinion here.  Go here for more on the story.

Maryland legislature again considers bill regarding liability for dog attacks

Two years ago I reported (here) that the Court of Appeals of Maryland issued an opinion in a case called Tracey v. Solesky holding that the owner of a pit bull could be held strictly liable for the injuries caused by the dog.

Soon thereafter pit bull owners and their advocates persuaded state legislators to convene a task force aimed at overriding the decision of the Court of Appeals.  See here.

However, after a very long process, the attempt by the legislature to enact a statute to override the holding in Tracey appeared to have failed. Both the House and the Senate approved statutes but they did not agree on the approach to use to deal with the issue.  A committee was formed to reconcile the bills, but the resulting compromise bill did not have the votes to pass.

A few days ago, however, the ABA Law Journal.com reported that the legislature is still considering the issue.  The State and House will have to pass a single bill.  Reportedly, the legislation would create a presumption that all dog owners are liable for bites by their pets, no matter what breed. The presumption could be overcome with proof the pet had been docile before the attack.  The Washington Post has more here.

This proposal makes no sense to me.  The law has never been that there is a presumption of liability.  The law is that a plaintiff has the burden of proof of either negligence or that the defendant knew or should have known of the dog's dangerous propensities.  What Tracey held was that a plaintiff only had to prove the animal was a pit bull to meet the requirement of proving that knowledge.

Instead of scaling back the reach of the Tracey ruling, this proposal actually appears to expand it.  Now all dog owners are presumed to have knowledge and the burden would shift to them to prove the negative.  After Tracey, pitbulls were thought to be inherently dangerous; now all dogs are presumed inherently dangerous.  I can't believe animal rights people would be in favor of this approach.