Two key appeals are poised to further define the boundaries of Amazon’s (and by extension, other online marketplaces’) liability for dangerous products. The first is Loomis v. Amazon.com, case number B297995, pending in Division Eight of the Seconds district of the California Court of Appeal.
Loomis, which involves burn injuries and a house fire started by a defective hoverboard purchased on Amazon, is the natural successor to last year’s landmark Bolger case from a different district of the California Court of Appeal. Loomis raises many of the same issues as Bolger, with the main difference being the hoverboard in Loomis was not Fulfilled by Amazon (“FBA”). In practical terms, this means Amazon never had possession of the hoverboard. Instead, it was shipped directly from the third-party supplier who listed it on Amazon’s website. Ms. Loomis argues this does not matter and under California law Amazon is still strictly liable for the damages caused by the defective hoverboard. Amazon, for its part, argues it was not the seller of the hoverboard and also that Bolger was wrongly decided.
The Loomis case is being handled by Chris Dolan of the Dolan Law Firm. Casey Gerry attorney Jeremy Robinson is co-counsel on the appeal. The case is fully briefed and oral argument is scheduled for February 23, 2021. A written decision is expected not long after that.
The second appeal is Macmillan v Amazon, pending in the Supreme Court of Texas. In McMillan, a young child was injured when she swallowed the batteries of a defective remote that was purchased on Amazon. Amazon moved for summary judgment in a Texas federal district court on the ground that it was not the seller of the remote, and lost. Amazon then appealed the issue to the Fifth Circuit Court of Appeals. Casey Gerry attorney Jeremy Robinson co-authored an amicus brief for the nonprofit organization Public Justice in that case. See, McMillan v. Amazon.com, Incorporated (5th Cir. 2020) 983 F.3d 194.
The Fifth circuit then certified the question to the Texas Supreme Court where the case currently sits. Briefing in that case is scheduled to be completed by mid-March 2021, and oral argument is set for March 25th. For several years in a row, the Texas Supreme Court has decided every argued case by the end of June, and this one likely will be no exception.
McMillan, which also involves FBA, is important because it is one of the few cases that Amazon lost at the trial court level. And, if the decision is upheld by the Texas Supreme Court, it would be one of the first appellate level decisions outside California to hold Amazon liable for defective products listed on its website. This would be an important advancement for consumer protection nationwide.
Stay tuned for further updates on these cases and other issues involving “E-tailer” liability.
