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Jeff Matthews

Amazon Liable under Strict Products Liability

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Can you post an excerpt... folks shoup dnt really click outside links

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Here is the decision. California has long had chain of distribution liability. They even created market share liability in drug cases.

 

"As a factual and legal matter, Amazon placed itself between Lenoge and Bolger in the chain of distribution of the product at issue here. Amazon accepted possession of the product from Lenoge, stored it in an Amazon warehouse, attracted Bolger to the Amazon website, provided her with a product listing for Lenoge’s product, received her payment for the product, and shipped the product in Amazon packaging to her. Amazon set the terms of its relationship with Lenoge, controlled the conditions of Lenoge’s offer for sale on Amazon, limited Lenoge’s access to Amazon’s customer information, forced Lenoge to communicate with customers through Amazon, and demanded indemnification as well as substantial fees on each purchase. 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."

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16 minutes ago, dwilawyer said:

Here is the decision. California has long had chain of distribution liability. They even created market share liability in drug cases.

 

"As a factual and legal matter, Amazon placed itself between Lenoge and Bolger in the chain of distribution of the product at issue here. Amazon accepted possession of the product from Lenoge, stored it in an Amazon warehouse, attracted Bolger to the Amazon website, provided her with a product listing for Lenoge’s product, received her payment for the product, and shipped the product in Amazon packaging to her. Amazon set the terms of its relationship with Lenoge, controlled the conditions of Lenoge’s offer for sale on Amazon, limited Lenoge’s access to Amazon’s customer information, forced Lenoge to communicate with customers through Amazon, and demanded indemnification as well as substantial fees on each purchase. 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."

 

Correct.  That is the crux.  However, there is a huge distinction.  Amazon never takes title to the product.  It is not a reseller.  It is a logistics company.  As far as I know (but I could be shown to the contrary), product liability has never been imposed upon any person who is not in the chain of title of the product.

 

Is this a distinction without a difference?  That's the argument that's being made.  It's certainly a novel argument. 

 

IMO, being in the chain of title is a very important aspect of liability.  Otherwise, small tech players will be at a disadvantage to big tech.  As the article points out, Amazon is willing to be held to liability as long as the same rule applies to everyone else who hopes to compete with Amazon (and the other big players).  There is a concern that if this becomes the new standard, it will stifle competition and cement Amazon's monopoly even more.

 

It's very interesting!

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49 minutes ago, Jeff Matthews said:

 

Correct.  That is the crux.  However, there is a huge distinction.  Amazon never takes title to the product.  It is not a reseller.  It is a logistics company.  As far as I know (but I could be shown to the contrary), product liability has never been imposed upon any person who is not in the chain of title of the product.

 

Is this a distinction without a difference?  That's the argument that's being made.  It's certainly a novel argument. 

 

IMO, being in the chain of title is a very important aspect of liability.  Otherwise, small tech players will be at a disadvantage to big tech.  As the article points out, Amazon is willing to be held to liability as long as the same rule applies to everyone else who hopes to compete with Amazon (and the other big players).  There is a concern that if this becomes the new standard, it will stifle competition and cement Amazon's monopoly even more.

 

It's very interesting!

I agree, I think the problem for Amazon is their agreement exerts too much control, specifically, pricing.  Amazon can say anything it wants about its business model, just as Uber can, the court is going to look behind that and determine if it walks like a duck, talks like a duck, looks like a duck, etc. 

 

Seems way to thin to me to impose liability for a battery that exploded months later on Amazon, but I don't wear a black dress.

 

What is Amazon? A delivery company? A broker? Facilitator? Middleman? Consignor?

 

Wonder what Restatement says about consignors, or an auctioneer (they don't take title either).

 

Title? So I set up a shell company, I'm just a warehouse.I get dog food from China and batteries. I make very clear to those companies I'm not taking title to anything. Risk of loss is on them. I will store their goods for a fee, and arrange to send it wherever they want me to send their deadly dog.food and batteries. Then I provide a platform where people can order exploding batteries, and deadly dog food. I make money on storage, I make some money on shipping and handling, and I also get a cut of what I sell through my platform (which is full of disclaimers and other legal mumbo jumbo that says when the other guy's battery blows up, or food kills your dog, you agree to hold me harmless and only seek recovery against the title holders/manufacturers).

 

It's been so long since I looked at any of this but privity of contract (title) seemed.to go by the wayside with strict liability in tort (Buick v. McPherson maybe?) and a great lawyer somewhere argued as between an innocent plaintiff, and those who make, distribute and sell a dangerous product who can spread risk, an innocent plaintiff should recover as a matter public policy.

 

When there was a free market, so to speak, in products liability law, and lawyers could lawyer, the market function seemed to work so much more efficiently.

 

What if the battery was sold on Ebay? Thinner still to me. UPS who delivered it, thinner still.

 

Travis

 

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Uber and Lyft would seem to have more liability for their “independent contractor” drivers than does Amazon for products sold by third parties.  You know most, if not all, Uber and Lyft drivers, as well as pizza delivery drivers using their own cars, are not informing informing their insurance carriers regarding the true commercial use of their “personal” vehicles.  If they did, their premiums would be prohibitive. 

 

Automobile insurance coverage gets murky even when a carpool driver collects “gas money” from co-workers.  A failure to disclose a commercial use of a personal vehicle probably voids the insurance.  At a minimum, the driver would be underinsured.  If it hasn’t happened already, some horrendous accident will pit all parties and their respective insurance carriers against each other.

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13 hours ago, dwilawyer said:

I agree, I think the problem for Amazon is their agreement exerts too much control, specifically, pricing.  Amazon can say anything it wants about its business model, just as Uber can, the court is going to look behind that and determine if it walks like a duck, talks like a duck, looks like a duck, etc. 

 

Seems way to thin to me to impose liability for a battery that exploded months later on Amazon, but I don't wear a black dress.

 

What is Amazon? A delivery company? A broker? Facilitator? Middleman? Consignor?

 

Wonder what Restatement says about consignors, or an auctioneer (they don't take title either).

 

Title? So I set up a shell company, I'm just a warehouse.I get dog food from China and batteries. I make very clear to those companies I'm not taking title to anything. Risk of loss is on them. I will store their goods for a fee, and arrange to send it wherever they want me to send their deadly dog.food and batteries. Then I provide a platform where people can order exploding batteries, and deadly dog food. I make money on storage, I make some money on shipping and handling, and I also get a cut of what I sell through my platform (which is full of disclaimers and other legal mumbo jumbo that says when the other guy's battery blows up, or food kills your dog, you agree to hold me harmless and only seek recovery against the title holders/manufacturers).

 

It's been so long since I looked at any of this but privity of contract (title) seemed.to go by the wayside with strict liability in tort (Buick v. McPherson maybe?) and a great lawyer somewhere argued as between an innocent plaintiff, and those who make, distribute and sell a dangerous product who can spread risk, an innocent plaintiff should recover as a matter public policy.

 

When there was a free market, so to speak, in products liability law, and lawyers could lawyer, the market function seemed to work so much more efficiently.

 

What if the battery was sold on Ebay? Thinner still to me. UPS who delivered it, thinner still.

 

Travis

 

 

I do not have time to read and thoroughly consider this, but the legal bullshit annoys me.  If I but from Amazon, I am choosing to buy from them, same as if I go into a store and buy something.  Amazon sold the product, that is it plain and simple.  Too bad our legal system does not work and they will likely get out of this. 

 

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1 hour ago, tigerwoodKhorns said:

 

I do not have time to read and thoroughly consider this, but the legal bullshit annoys me.  If I but from Amazon, I am choosing to buy from them, same as if I go into a store and buy something.  Amazon sold the product, that is it plain and simple.  Too bad our legal system does not work and they will likely get out of this. 

 

 

Do lawyers still have to learn Latin in High School?

JJK

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2 hours ago, DizRotus said:

No.

They do if they get into canonical law.

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21 hours ago, dwilawyer said:

It's been so long since I looked at any of this but privity of contract (title) seemed.to go by the wayside with strict liability in tort (Buick v. McPherson maybe?) and a great lawyer somewhere argued as between an innocent plaintiff, and those who make, distribute and sell a dangerous product who can spread risk, an innocent plaintiff should recover as a matter public policy.

This is a very good point.  I remember the case.  Do you think the Texas Supreme Court would hold Amazon liable, or do you think it would punt it to the legislature?

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7 hours ago, tigerwoodKhorns said:

 

I do not have time to read and thoroughly consider this, but the legal bullshit annoys me.  If I but from Amazon, I am choosing to buy from them, same as if I go into a store and buy something.  Amazon sold the product, that is it plain and simple.  Too bad our legal system does not work and they will likely get out of this. 

 

You have to know the evolution.

 

Before MacPherson in about 1905, you could sue the dealer you bought a truck from if it was defective, but not the car maker or a supplier whose product was the item that actually was the problem, like the maker of a wheel that goes onto the truck. You could only sue who you bought truck from. This was because a case in England that said you had to be in privity. It became part of our Common Law. Winterbottom, about a postman.

 

Common law is judge made law. 

 

It's drawing lines on how far should liability extend beyond parties to a transaction 

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Certainly no legal beagle here.......  but...........   seems to me that Amazon deploys its customer ratings to represent product performance, and we know that Amazon edits what ratings are allowed and thusly massages product assessments and user performance expectations. And if this ‘rating’ impacts choices then should it not encumber liability for the purchase decisions and the real performance of the product? Amazon is no silent ‘seller’ of anything. It appears to me that Amazon works to impart some level of product quality in its operational format.

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6 minutes ago, Bosco-d-gama said:

we know that Amazon edits what ratings are allowed and thusly massages product assessments and user performance expectations

I didn't know this.  I have heard stories about vendors gaming the ratings somehow.

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8 hours ago, Jeff Matthews said:

I didn't know this.  I have heard stories about vendors gaming the ratings somehow.

When a customer provides product feedback to Amazon that feedback gets reviewed prior to its acceptance and being posted. Exactly who conducts this review and authorizes its acceptance or declination I do not personally know.  But the review verbiage is all 1st person Amazon, ‘does not meet Amazon standards’, or ‘thanks for the review it is now posted’. This should be examined for its objectivity and accuracy....  and source. Personally I have experienced several review declinations that I felt accurately described valid product problems. A few of those included photos of the situation. So - yeah - at least in appearance it looks as though Amazon ‘works’ customer product feedback.

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21 minutes ago, Bosco-d-gama said:

When a customer provides product feedback to Amazon that feedback gets reviewed prior to its acceptance and being posted. Exactly who conducts this review and authorizes its acceptance or declination I do not personally know.  But the review verbiage is all 1st person Amazon, ‘does not meet Amazon standards’, or ‘thanks for the review it is now posted’. This should be examined for its objectivity and accuracy....  and source. Personally I have experienced several review declinations that I felt accurately described valid product problems. A few of those included photos of the situation. So - yeah - at least in appearance it looks as though Amazon ‘works’ customer product feedback.

 

Your valid accurate problems may not be the accurate problems of multitudes of everyone else. Like paint color, odor, method of packaging, assembly instructions, etc.

JJK

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14 minutes ago, JJkizak said:

 

Your valid accurate problems may not be the accurate problems of multitudes of everyone else. Like paint color, odor, method of packaging, assembly instructions, etc.

JJK

No doubt the ‘feedback’ method curries many perspectives, good and bad. My point here is that feedback is solicited and in my experience, edited for approval prior to posting. Amazon knows the value of this word of mouth content and how it impacts purchase decisions. Therefore ‘feedback’ becomes an Amazon marketing ploy that is not transparent but is manipulated.
 

The obvious question is....   has Amazon ever removed a product because of consistently poor feedback? From Amazon I have purchased Dremel grinder bits based on positive feedback that were made so poorly that I could break them in pieces using my bare hands. That’s dangerous and could easily lead to user harm. My feedback was declined and those same bits remain available and with largely positive feedback. If Amazon knowingly sells defective products then Amazon should be held accountable for real damages those products cause.

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I use a lot of Dremel bits in my artwork and I might be one of those who gave positive feedback. Those are tame compared to some of the 3" circular chainsaw chain wheels I use without guards.

JJK

 

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12 hours ago, Bosco-d-gama said:

When a customer provides product feedback to Amazon that feedback gets reviewed prior to its acceptance and being posted. Exactly who conducts this review and authorizes its acceptance or declination I do not personally know.  But the review verbiage is all 1st person Amazon, ‘does not meet Amazon standards’, or ‘thanks for the review it is now posted’. This should be examined for its objectivity and accuracy....  and source. Personally I have experienced several review declinations that I felt accurately described valid product problems. A few of those included photos of the situation. So - yeah - at least in appearance it looks as though Amazon ‘works’ customer product feedback.

They for sure set and control pricing, Paul Jacob's spoke about this at Pilgramage in 2016 and advised they were pulling out of Amazon. Short term would be a hit, long term a positive. I think, not sure, Amazon came back and said they had reconsidered their concerns.

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12 hours ago, Bosco-d-gama said:

When a customer provides product feedback to Amazon that feedback gets reviewed prior to its acceptance and being posted. Exactly who conducts this review and authorizes its acceptance or declination I do not personally know

Note to self. Do not allow feedback, of any kind, on platform that sells poison dog food and exploding batteries.

 

Where were most of those two wheel hover boards sold that were catching fire?

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