63 Cal.App.5th 466
Cal. Ct. App.2021Background
- Plaintiff Kisha Loomis bought a hoverboard from third‑party seller TurnUpUp via Amazon’s marketplace; product was shipped by Forrinx and allegedly ignited, causing injury.
- Amazon’s marketplace (BSA): Amazon hosts listings, processes payments, collects referral fees, controls listings/communications, can require safety certifications/indemnity/insurance, and can remove listings; some sellers use Fulfillment by Amazon but TurnUpUp did not.
- Amazon received substantial fees from TurnUpUp hoverboard sales and investigated hoverboard safety before removing listings.
- Loomis sued (strict products liability, negligence, breach of warranty, fraud); Forrinx defaulted; trial court granted Amazon summary judgment.
- The Court of Appeal reversed as to strict products liability and negligent products liability, holding triable issues exist whether Amazon is part of the distribution chain or liable under the stream‑of‑commerce (marketing enterprise) theory.
- The panel relied heavily on Bolger v. Amazon and analyzed traditional California strict‑liability policy factors (Greenman/Vandermark) to find imposition of strict liability on Amazon supported by public‑policy considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Amazon can be strictly liable as a member of the vertical chain of distribution | Amazon placed itself between seller and buyer (took order/payment, controlled listings/communications, received fees) and thus is a distributor/retailer | Amazon is merely a marketplace/service provider that neither manufactured, sold, nor held title to the product | Court: Triable issues exist; summary adjudication improper as to strict liability (reversed and remanded) |
| Whether Amazon can be strictly liable under the stream‑of‑commerce/marketing enterprise theory | Amazon received direct financial benefit, played an integral role in bringing the seller’s product to market, and could influence safety/manufacturing via BSA requirements | Fees and platform access do not prove integral role or control; market existed independent of Amazon | Court: Triable issues exist on all three Bay Summit factors; Bolger persuasive; strict liability may attach |
| Whether Communications Decency Act §230 shields Amazon from liability for these claims | Claims target Amazon’s own conduct in the sale/distribution, not merely third‑party content | CDA immunizes providers for third‑party content/actions | Court: CDA issue not decided for strict/negligence claims here (Amazon effectively conceded CDA not applicable to those claims); Bolger also found CDA not a bar |
| Whether Amazon owed a duty in negligent products liability (beyond strict liability) | Duty exists under negligence factors (foreseeability, closeness of connection, ability to prevent harm) | Duty limited to manufacturers/sellers; Amazon not a proper defendant | Court: Amazon failed to meet summary judgment burden; triable issues as to duty and negligence; summary adjudication improper |
Key Cases Cited
- Greenman v. Yuba Power Prods., 59 Cal.2d 57 (California 1963) (establishing strict products liability doctrine)
- Vandermark v. Ford Motor Co., 61 Cal.2d 256 (California 1964) (extending strict liability to retailers; articulating policy factors)
- Bolger v. Amazon.com, LLC, 53 Cal.App.5th 431 (Cal. Ct. App. 2020) (applying strict‑liability analysis to Amazon marketplace; finding Amazon was a link in distribution)
- O'Neil v. Crane Co., 53 Cal.4th 335 (California 2012) (limits on duty when imposing responsibility would be unworkably broad)
- Bay Summit Community Assn. v. Shell Oil Co., 51 Cal.App.4th 762 (Cal. Ct. App. 1996) (three‑factor test for stream‑of‑commerce/marketing enterprise liability)
- Canifax v. Hercules Powder Co., 237 Cal.App.2d 44 (Cal. Ct. App. 1965) (a defendant cannot avoid strict liability merely by delegating manufacture or by not having physical possession)
- Murphy v. E. R. Squibb & Sons, 40 Cal.3d 672 (California 1985) (service provider may be subject to strict liability when sale of product and service are integrated)
- Arriaga v. CitiCapital Commercial Corp., 167 Cal.App.4th 1527 (Cal. Ct. App. 2008) (limits on imposing strict liability on finance lessors lacking ability to influence safety)
- Kesner v. Superior Court, 1 Cal.5th 1132 (California 2016) (endorsing cost‑benefit incentives in assigning tort duties)