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If you’re like many of the 126 million Amazon Prime subscribers in the U.S., you probably frequently capitalize on the one- and two-day Prime shipping perks we all know and love. And since Amazon sells just about anything, either directly or through third-party sellers, it’s often faster to purchase goods online and wait for them to arrive than it is to find time to go to a store.

Considering that there are literally billions of Amazon packages mailed each year, what happens when a third-party retailer sells a dangerous product on amazon.com, and then it hurts someone? Is Amazon on the hook for every item it sells on amazon.com?

Jeremy K. Robinson, partner at CaseyGerry in San Diego, is spearheading the fight to make that answer a resounding yes. In 2020, he secured a precedent-setting decision in Bolger v. Amazon.com, a case surrounding a defective laptop battery made in China that badly burned his client. Even though Amazon had defeated the argument numerous times previously, an appeals court sided with Jeremy and ruled that Amazon can be held strictly liable for defective products purchased through its online marketplace. This ruling is a particularly big deal, because it marks the first time any state appellate court has ruled against Amazon on this issue.

Bolger v. Amazon is one of several cases currently working to hold Amazon accountable for the safety of the products sold on its site. Jeremy recently shared with us several updates that could have a huge impact on the future of this legal issue regarding not only Amazon, but also other online retailers.

Pending appeals set to further define the scope of Amazon’s liability

By Jeremy K. Robinson, Partner at CaseyGerry, Written for Milestone

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 that Bolger was wrongly decided.

The Loomis case is being handled by Chris Dolan of the Dolan Law Firm. CaseyGerry 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. CaseyGerry 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.

Established in 1947, the San Diego-based plaintiffs’ law firm of CaseyGerry practices in numerous areas including serious personal injury, complex litigation, class action, aviation, product liability, e-commerce litigation, and more. Milestone works in tandem with law firms by guiding trial lawyers and their clients through the critical decisions that come with settlement. We provide trusted guidance and financial strategies to set everyone up for a successful financial future.

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