Amazon Hit With Major CA Appellate Court Loss To Woman Injured By Exploding Battery

Decision ends Amazon skirting liability for defective and dangerous products sold on its website.

August 14, 2020, Los Angeles, CA – The California Court of Appeals dealt a harsh blow to Amazon, holding the e-commerce giant strictly liable in California for injuries, death, or property damage caused by defective products sold by third-party vendors on its website. About 60% of Amazon sales are from third-party "Marketplace" sellers, many from China.

Plaintiff Angela Bolger was using her laptop computer when a replacement battery purchased on Amazon exploded. Bolger suffered severe third-degree burns to her arms, legs, and feet, and was hospitalized for two weeks.

The battery was delivered to Bolger from Amazon's "Fulfilled By Amazon" (FBA) logistical service, in an Amazon box, sealed by Amazon shipping tape. Amazon charged Bolger's credit card for the $12.30 purchase price and took a total fee for the transaction of $4.87, or approximately 40 percent of the purchase price. Bolger believed Amazon sold her the battery.

Bolger sued Amazon for strict product liability, negligent product liability, breach of implied warranty, breach of express warranty, and "negligence/negligent undertaking."

Amazon, represented by Perkins Coie LLP, claimed its website was an "online marketplace" and not liable as it did not distribute, manufacture, or sell the product in question. The San Diego trial court agreed and granted Amazon's motion to dismiss the case.

Bolger appealed.

A California Court of Appeal, Fourth District opinion reversed the trial court decision, "But for Amazon’s own acts, Bolger would not have been injured. As a factual and legal matter, Amazon placed itself between the actual China seller and Bolger in the chain of distribution of the product at issue here. Amazon possessed the product, attracted Bolger to Amazon's website, provided the listing, controlled the conditions of sale, received Bolger's payment, received a 40% fee, and shipped the product. 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."

Additionally, the appellate court ruled, "We further conclude Amazon is not shielded from liability by title 47 United States Code section 230. That section, enacted as part of the Communications Decency Act of 1996. Amazon's own activities, not its status as a speaker or publisher of content provided by [the seller] for its product listing."

Amazon has historically and categorically denied liability for "third-party marketplace sellers", allowing unvetted merchants, many from China, to flood its e-commerce websites with counterfeit, fraudulent, and replica products.

While Amazon publicly has, and continues to exhaustively claim it "does not allow counterfeits, fakes, and replicas, an entirely different and nefarious business practice is emerging. 200,000 brands have signed up to fight counterfeits on Amazon, a shocking revelation of the enormity of Amazon's fake and fraud problems.

Further illuminating Amazon's credibility crisis, Amazon Customer Trust VP, Dharmesh Mehta, testified to Congress that Amazon commingles products, "Amazon virtually tracks different units that are identical, shipping the products closest to customers " and destroying the "Amazon's Choice" endorsement, adding "there is no unique safety testing for the "Amazon's Choice" products. There is no unique screening for authenticity to receive that badge." Hardly a confidence builder for consumers.

Consumers simply don't have a chance.

Peter K. Navarro, Ph.D., top economic and trade advisor to the President, succinctly warns “For all practical purposes, these e-commerce hubs are basically laundries for counterfeits.”

According to The Verge, Amazon has faced more than 60 federal lawsuits over product liability in the past decade. The suits are a grim catalog of disaster and injuries, with cases in multiple states put on hold while the situation shakes out.

One of Bolger’s attorneys, Jeremy Robinson, with Casey, Gerry, Schenk, Francavilla, Blatt & Penfield LLP, in San Diego, said: “It is impossible to overstate the magnitude of this ruling. Consumers across the nation will feel the impact of this.”

The U.S. Court of Appeal for the 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 -- the issue involves its role as a supplier.

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.

Consumers have the choice to shop the major retailers (Kroger, Costco, Home Depot, Target, Lowes, Best Buy, etc.) who offer consumers competitive local and online purchase options with prompt delivery.