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Amazon Can Be Liable in California for Defective Products (2)

Aug. 13, 2020, 8:18 PM; Updated: Aug. 13, 2020, 11:29 PM

Amazon.com can be held strictly liable in California to customers injured by defective products purchased in “marketplace” sales on its site, a state appeals court held Thursday.

The court reversed a trial court and reinstated claims by a woman who alleges harm from a defective laptop battery. The decision opens the door to Amazon’s liability in the state of nearly 40 million people if it isn’t overturned.

“As of right now, this is the law of California,” at least for cases with similar facts, said Jeremy Robinson, who argued the case for the injured woman, Angela Bolger. Those facts include warehousing and shipment by Amazon, he said.

Meanwhile, the California Legislature is considering a bill treating “electronic retail marketplaces” like retailers for purposes of California strict liability law. The bill passed the California State Assembly in June, 54–14, and is currently pending before a State Senate committee.

This is one of the first rulings holding that Amazon is subject to liability for products sold on its website, and it’s facing similar litigation over defective products in other federal and state courts.

Nationally, this is “the first published appellate-level decision” holding Amazon potentially liable, Robinson told Bloomberg Law.

The U.S. Court of Appeal for Fifth Circuit is considering the issue under Texas law, and the Third Circuit sent a product liability question involving the online company to the Pennsylvania Supreme Court. The Ohio Supreme Court is also set to decide Amazon’s liability in that state—there the issue involves its role as a supplier.

The ruling also could have an impact at the Ninth Circuit, where another case applying California law is pending over an allegedly defective hoverboard.

“It is impossible to overstate the magnitude of this ruling,” Robinson said in a statement.

“Consumers across the nation will feel the impact of this,” he said. Robinson is with Casey, Gerry, Schenk, Francavilla, Blatt & Penfield LLP in San Diego.

Amazon ‘Pivotal’ in Distribution Chain


Bolger alleges a defective Lenoge Technology HK Ltd. replacement laptop battery caused third-degree burns to her arms, legs, and feet.

Although she lost in the trial court, Bolger argued that strict liability in California doesn’t depend on a sale or the transfer of title, as in some other states.

The California Court of Appeal, Fourth District, reversed a trial court ruling granting judgment for Amazon.

Amazon placed itself in the chain of distribution of the product, it said. It was “pivotal” in bringing the product to the consumer, regardless of what term is used to describe its role.

Under established principles of strict liability, Amazon should be held liable if a product sold on its website turns out to be defective, the court said.

Justice Patricia Guerrero rejected Amazon’s argument that it lacks control over products on its marketplace. It had control over both the product and the Bolger transaction, she said for the court.

“It constructed the Amazon website, accepted Lenoge as a third-party seller, marketed Lenoge’s offer for sale, took possession of the replacement battery, accepted Bolger’s order for the battery, billed her for the purchase price, and shipped her the battery in Amazon-branded packaging,” Guerrero said.

“But for Amazon’s own acts, Bolger would not have been injured,” she said. “Amazon’s own acts, and its control over the product in question, form the basis for its liability.”

Nor is Amazon shielded by the federal Communications Decency Act, the court said, which protects the online publishing of information.

The decision comes just two days after attorneys argued the case to the appellate panel. The Court of Appeal invests time in cases ahead of oral argument because it has just 90 days after argument to render a decision, according to attorneys who practice there.

An appeal to the California Supreme Court may be on the horizon, though Amazon didn’t immediately respond to a request for comment.

Robinson, Bolger’s attorney, said he didn’t know whether Amazon would want to appeal. “The California Supreme Court is pretty plaintiff-friendly” and liberal, he said. Amazon would have to weigh the prospect of losing there, he said.

While many courts have found Amazon not liable for defective products under various states laws, injured consumers have had some other successes.

Amazon settled a home insurer’s case over a faucet blamed for flooding after a federal district court allowed strict liability claims to continue against it.

And it settled a Tennessee family’s house fire case after a federal court there permitted claims related to a post-sale email about hoverboards.

Justices Patricia Benke and Terry B. O’Rourke joined the opinion.

Perkins Coie LLP represented Amazon.

The case is Bolger v. Amazon.com, Inc., Cal. Ct. App., 4th Dist., No. D075738, 8/13/20.

(Updated with additional comment and details.)

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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