Bolger v. Amazon.Com, LLC

Decision Date13 August 2020
Docket NumberD075738
Parties Angela BOLGER, Plaintiff and Appellant, v. AMAZON.COM, LLC, Defendant and Respondent.
CourtCalifornia Court of Appeals Court of Appeals

Casey, Gerry, Schenk, Francavilla, Blatt & Penfield, Thomas D. Luneau, Jeremy Robinson, San Diego, and Jillian F. Hayes, for Plaintiff and Appellant.

Lieff Cabraser Heimann & Bernstein, Jonathan D. Selbin, New York, NY, and Evan J. Ballan, San Francisco, for Public Justice, as Amicus Curiae on behalf of Plaintiff and Appellant.

Siminou Appeals and Benjamin I. Siminou, San Diego, for the Consumer Attorneys of California, as Amicus Curiae on behalf of Plaintiff and Appellant.

Perkins Coie, Julie L. Hussey, Julian Feldbein-Vinderman, Los Angeles, and W. Brendan Murphy, for Defendant and Respondent.

Baker Botts, Christopher J. Carr and Navi Singh Dhillon, San Francisco, for the Chamber of Commerce of the United States of America, as Amicus Curiae on behalf of Defendant and Respondent.


Plaintiff Angela Bolger bought a replacement laptop computer battery on Amazon, the popular online shopping website operated by defendant, LLC. The Amazon listing for the battery identified the seller as "E-Life," a fictitious name used on Amazon by Lenoge Technology (HK) Ltd. (Lenoge). Amazon charged Bolger for the purchase, retrieved the laptop battery from its location in an Amazon warehouse, prepared the battery for shipment in Amazon-branded packaging, and sent it to Bolger. Bolger alleges the battery exploded several months later, and she suffered severe burns as a result.

Bolger sued Amazon and several other defendants, including Lenoge. She alleged causes of action for strict products liability, negligent products liability, breach of implied warranty, breach of express warranty, and "negligence/negligent undertaking." Lenoge was served but did not appear, so the trial court entered its default.

Amazon moved for summary judgment. It primarily argued that the doctrine of strict products liability, as well as any similar tort theory, did not apply to it because it did not distribute, manufacture, or sell the product in question. It claimed its website was an "online marketplace" and E-Life (Lenoge) was the product seller, not Amazon. The trial court agreed, granted Amazon's motion, and entered judgment accordingly.

Bolger appeals. She argues that Amazon is strictly liable for defective products offered on its website by third-party sellers like Lenoge. In the circumstances of this case, we agree.

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.

Strict products liability "was created judicially because of the economic and social need for the protection of consumers in an increasingly complex and mechanized society, and because of the limitations in the negligence and warranty remedies." ( Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733, 144 Cal.Rptr. 380, 575 P.2d 1162 ( Daly ).) It "arose from dissatisfaction with the wooden formalisms of traditional tort and contract principles in order to protect the consumer of manufactured goods." ( Id. at p. 735, 144 Cal.Rptr. 380, 575 P.2d 1162.) The scope of strict liability has been expanded, where necessary, to account for "market realities" and to cover new transactions in "widespread use ... in today's business world." ( Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 252, 85 Cal.Rptr. 178, 466 P.2d 722 ( Price ).)

The structure of Amazon's relationship with Lenoge, on one hand, and Bolger, on the other, presents just such a new transaction now in widespread use. We must therefore return to the principles underlying the doctrine of strict products liability to determine whether it applies. (See O'Neil v. Crane Co. (2012) 53 Cal.4th 335, 362, 135 Cal.Rptr.3d 288, 266 P.3d 987 ( O'Neil ); Jimenez v. Superior Court (2002) 29 Cal.4th 473, 479-480, 127 Cal.Rptr.2d 614, 58 P.3d 450 ( Jimenez ).) Those principles compel the application of the doctrine to Amazon under the circumstances here. As noted, Amazon is a direct link in the chain of distribution, acting as a powerful intermediary between the third-party seller and the consumer. Amazon is the only member of the enterprise reasonably available to an injured consumer in some cases, it plays a substantial part in ensuring the products listed on its website are safe, it can and does exert pressure on upstream distributors (like Lenoge) to enhance safety, and it has the ability to adjust the cost of liability between itself and its third-party sellers. Under established principles of strict liability, Amazon should be held liable if a product sold through its website turns out to be defective. (See Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168 ( Vandermark ).) Strict liability here "affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship." ( Id. at pp. 262-263, 37 Cal.Rptr. 896, 391 P.2d 168.)

We further conclude Amazon is not shielded from liability by title 47 United States Code section 230. That section, enacted as part of the Communications Decency Act of 1996 (CDA; Pub.L. No. 104-104, tit. V (Feb. 8, 1996) 110 Stat. 56), generally prevents internet service providers from being held liable as a speaker or publisher of third-party content. It does not apply here because Bolger's strict liability claims depend on Amazon's own activities, not its status as a speaker or publisher of content provided by Lenoge for its product listing.

We therefore reverse the trial court's judgment in favor of Amazon. On remand, the court shall vacate its order granting Amazon's motion for summary judgment and enter an order granting the motion in part and denying it in part, as discussed more fully below.


Consistent with our standard of review of orders granting summary judgment, we recite the historical facts in the light most favorable to Bolger as the nonmoving party. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143 ( Saelzler ); Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 81, 221 Cal.Rptr.3d 668.)

Many readers of this opinion are likely familiar with the Amazon website. It is the world's most popular e-commerce website. In the United States, approximately half of all online shopping dollars are spent on Amazon. The Amazon website is, in some sense, " ‘the world's largest store’ " in the Internet age.

Products sold on the Amazon website fall into two general categories. In one category are the products Amazon itself selects, buys from manufacturers or distributors, and sells to consumers at a price established by Amazon. These products, which make up approximately 40 percent of the website's sales, are not at issue in this appeal. In the second category are the products ostensibly sold by third parties through Amazon's website. These "third-party sellers" select their own products, source them from manufacturers or distributors, set the purchase price, and use Amazon's website to reach consumers. They pay either a monthly fee or a per item fee for the opportunity to sell on Amazon's website.

The product listings for the two categories are often similar. The main distinction is that products not sold directly by Amazon include the words "Sold by" and the name of the third-party seller instead of Amazon. An example third-party listing appears below. It was reproduced in an e-commerce expert declaration submitted by Bolger in opposition to Amazon's motion for summary judgment. The "Sold by" notation is included on the right side of the listing.

To purchase a product offered by a third-party seller, the customer adds it to his or her Amazon cart. At checkout, the order confirmation page again identifies the product as "Sold by" the third-party seller. To complete the purchase, Amazon charges the customer's credit card or other payment information in its files. Amazon informs sellers it will "collect all Sales Proceeds for each of these transactions and will have the exclusive rights to do so[.]" Amazon accepts the risk that the customer's payment information will turn out to be fraudulent. After Amazon collects the payment, it deducts a referral fee (and other potential fees, discussed below), aggregates the remaining proceeds with those from other purchases, and remits them to the third-party seller on a periodic basis.1

Some third-party sellers participate in the "Fulfilled by Amazon" (FBA) program. The FBA program allows third-party sellers to reach customers on a global basis. Third-party sellers must apply to register any product included in the FBA program, and Amazon may refuse registration for various reasons. Bolger's e-commerce expert described the FBA program as follows: "This service allowed companies and individuals with products to sell to ship the products to Amazon's warehouses; these products would be presented for sale within the Web site, and, if and when sold, would be shipped...

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