Amazon Wants California Top Court to Weigh Marketplace Liability

Sept. 23, 2020, 6:11 PM

A California appeals court “usurped the role of the Legislature and expanded strict liability beyond well-established limits,” Amazon.com LLC said in a petition for state high court review of a case over an allegedly defective laptop battery.

“Strict liability has never applied to services,” and Amazon facilitated the web marketplace sale through “classic services,” the company said Tuesday in its California Supreme Court filing.

Amazon’s petition comes just as it said it resolved another high-profile product liability case, apparently through settlement. That case, at the U.S. Court of Appeals for the Third Circuit, explored whether the company was subject to strict liability under Pennsylvania law.

A case under California law is also pending at the Ninth Circuit. In that case, family members blame a hoverboard purchased on Amazon’s web marketplace for a fire in which they lost their home and two dogs. Oral argument is set for Oct. 20.

Here, Angela Bolger alleged a defective Lenoge Technology HK Ltd. replacement laptop battery caused third-degree burns to her arms, legs, and feet. The trial court dismissed her claims, but the California Court of Appeal, Fourth District, reinstated them, opening the door to Amazon’s liability for defective products in the populous state.

The California Legislature recently shelved, for this session, a bill treating “electronic retail marketplaces” as retailers for purposes of California strict liability law. The bill, which Amazon came to support, passed the California State Assembly in June, 54–14.

A version is expected to be re-introduced in the next legislative session, Amazon said in its petition.

“Public policy is for the Legislature,” Amazon argued, citing the bill. “The Court of Appeal’s foray into policy-making was particularly inappropriate here because the Legislature was in the process of weighing the competing considerations, and making the policy choice, when the Court heard argument and issued its decision,” it said.

And the appeals court’s decision, if allowed to stand, would have a wide effect, it said.

“Whether strict liability for a marketplace should be the law of California, and whether courts are the right body of government to decide
that, are important questions of law that the Fourth District got wrong.” it said.

The company isn’t arguing that it’s shielded by the federal Communications Decency Act, which protects internet platforms from liability for publishing others’ speech. The trial court and appeals court both rejected that argument.

Perkins Coie LLP submitted the petition for Amazon. Jeremy Keith Robinson represents Bolger.

The case is Bolger v. Amazon.com LLC, Cal., No. S264607, petitiopn for review 9/22/20.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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