State appeal court revives product liability suit against Amazon

Breaking ranks with other courts across the nation, a state appellate panel on Thursday revived a product liability lawsuit against Amazon, claiming the company is liable for the burn injuries suffered by a woman when a replacement computer laptop battery exploded.

The product -- sold under the name, E-Life, was manufactured by a Hong Kong-based company but bought from Amazon.com. Inc. Plaintiff Gloria Bolger sued the online retailer, alleging it is strictly liable for defective products offered on its e-commerce website. San Diego County Superior Court Judge Randa M. Trapp granted Amazon's summary judgment motion and dismissed the complaint.

But 4th District Court of Appeal Justice Patricia Guerrero, writing for the panel, said Amazon placed itself between the manufacturer, Lenoge Technology Ltd., and Bolger by storing the battery in an Amazon warehouse in Oakland before shipping it to her under a program known as "Fulfilled by Amazon" that allowed third-party sellers to use the company's platform.

Amazon suspended Lenoge's selling privileges after learning of several safety reports about its batteries, blocking the company's account. Bolger's battery exploded less than a month later, causing severe burns on her legs and arm and hospitalizing her for several weeks, according to Jeremy K. Robinson, Bolger's attorney and a partner with Casey Gerry Schenk Francavilla Platt & Penfield LLP.

"But for Amazon's own acts, Bolger would not have been injured," Guerrero wrote, remanding the case to superior court. "Amazon's own acts, and its control over the product in question, form the basis for its liability." Bolger v. Amazon.com LLC, 2020 DJDAR ____ (Cal. App. 4th Dist. Aug. 13, 2020).

While the decision does not mean Bolger has won the case, Robinson said the ruling was the first state appellate decision to hold Amazon can be held liable. "It's a huge win in terms of its implications," he said in a telephone interview. "To have an appellate court come out the other way is a major blow" to Amazon.

But the case is an outlier, at least so far.

Federal courts across the nation have consistently ruled in Amazon's favor in product liability cases. Last year, U.S. District Judge Jon S. Tigar of Oakland rejected a lawsuit by a plaintiff who claims their house burned down as a result of a defective hoverboard,

"Because plaintiffs have failed to demonstrate a triable issue of fact as to a necessary element of their marketing enterprise theory, and provide no other basis for subjecting Amazon to strict liability, Amazon is entitled to summary judgment on all of plaintiffs' strict liability claims," Tigar wrote in March 2019. Carpenter et al. v. Amazon.com Inc., 17-CV03221 (N.D. Cal., filed June 5, 2017).

Carpenter's appeal is scheduled to be considered by the 9th U.S. Circuit Court of Appeals this year.

The Bolger case drew amicus curiae briefs from plaintiffs' attorneys who sided with Bolger and lawyers representing business interests that argued on Amazon's behalf.

Evan J. Ballan, an associate with Lieff Cabraser Heimann & Bernstein LLP, and Benjamin I. Siminou of Siminou Appeals argued in an amicus brief for the Consumer Attorneys of California and Public Justice that Amazon, if victorious, would maintain an unfair advantage over traditional retailers that are saddled with increased tort liability costs.

"The Court of Appeal correctly recognized that while Amazon's business model may be novel and virtual, it nonetheless functions like a traditional brick-and-mortar retailer," Siminou said in a prepared statement. "By applying strict liability to products that Amazon sells and sends to consumers, today's victory is not only a victory for consumer rights, it is also a big win for anyone interested in a robust and competitive retail marketplace."

The U.S. Chamber of Commerce argued Amazon, as an online marketplace, cannot be held liable for defective products sold there.

"Strict liability is designed to ensure that those with control over the design and manufacture of products are responsive to consumer harms," wrote Christopher J. Carr of Baker Botts LLP in an amicus brief. "Without such a relationship, Amazon.com does not have sufficient control to be held strictly liable in tort, as the federal courts have overwhelmingly recognized."

Julie L. Hussey, a partner with Perkins Coie LLP who represents Amazon, could not be reached Thursday. The company did not return emails seeking comment.

The other members of the 4th District panel were Justice Patricia D. Benke and Justice Terry B. O'Rourke.