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Another Court Hits Amazon with Strict Liability for Another Incendiary Electronic Device

Tim Kowal     May 4, 2021

In September 2020, we reported that the Fourth District held Amazon liable in strict liability for an exploding battery sold on its online store, because Amazon inserted itself into the chain of distribution when it charged for the purchase, and stored, packaged, and delivered the product. Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431 (Bolger). Seven months later, the Second District eagerly followed suit in Loomis v. Amazon.com LLC (D2d8 Apr. 26, 2021) B297995 (published).

The plaintiff in Loomis bought a "hoverboard" on Amazon, and while charging it on her bed, the hoverboard ignited fire, injuring the plaintiff when she doused the fire, which had also spread to her bed.

The trial court granted summary judgment for Amazon. But the Second District reversed, complete with a law review article-grade opinion.

Amazon argued Bolger was wrongly decided, arguing Amazon is a mere "facilitator." Amazon's involvement in the sale in Loomis was rather less involved than in Bolger, as unlike the seller in Bolger, the seller here maintained custody over and title to the product until the sale.

But the Second District still readily agreed with Bolger, finding Amazon fit squarely within the traditional strict-liability rubric, as the sale itself and all communications were funneled through and controlled by Amazon.

Justice Wiley's concurring opinion suggests he would have voted twice for reversal given the chance. "This case is easy," said Justice Wiley. "Once Amazon is convinced it will be holding the bag on these accidents, this motivation will prompt it to engineer effective ways to minimize these accident costs. Tort law will inspire Amazon to align its ingenuity with efficient customer safety. Customers will benefit." “Thus we have an easy case that beautifully illustrates the deep structure of modern tort law: a judicial quest to minimize the social costs of accidents—that is, the sum of the cost of accidents and the cost of avoiding accidents.”

That is rather more sugar in my tea than suits me. But we know where Justice Wiley stands.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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