Products Liability Law Reporter

A federal district court granted partial summary judgment for Amazon in a suit alleging a child was injured from a product’s lithium battery.

Carey Gartner ordered an Apple TV remote from Amazon third-party vendor Hu Xi Jie. The remote’s battery compartment opened, exposing its lithium battery. Gartner’s infant daughter subsequently ingested the battery and suffered permanent injuries to her esophagus. Gartner’s wife, individually and on her daughter’s behalf, sued Amazon, alleging strict liability design and marketing defects, breach of implied warranty, and negligence. The defendant moved for summary judgment.

Granting in part and denying in part, the district court noted that Tex. Civ. Prac. & Rem. Code Ann. §82.001(2) allows actions against manufacturers or sellers of defective products and defines a seller as a person or entity engaged in the business of distributing or placing a product into the stream of commerce for a commercial purpose. The court found that Amazon qualified as a seller under section 82, reasoning, in part, that the online retailer set the fees it retained from the sale of the remote, controlled the process by which consumers paid for the product, and operated the sole channel of communication between its third-party vendor and the consumer.

The court also held that the Communications Decency Act (CDA), 47 U.S.C. §230, which grants broad immunity to internet service providers for claims arising from publication of a third party’s information, bars the plaintiff’s claim alleging that the defendant failed to place a warning about the remote on its product detail web page. Amazon qualifies as an interactive computer service provider, the court said, and the remote’s product detail page was provided by third party Hu Xi Jie.

Nevertheless, the court held that the plaintiff’s claims relating to Amazon’s involvement in the sales process of third-party products are not subject to dismissal under the CDA.

Citation: McMillan v. Amazon, Inc., 2020 WL 1896703 (S.D. Tex. Jan. 7, 2020).

Plaintiff counsel: Jeff Meyerson, Austin, Texas.