Only weeks after the U.S. Court of Appeals for the Fourth Circuit rejected an insurance company's subrogation action against Amazon.com, Inc., finding that Amazon was not the seller of an allegedly defective product on its website and, therefore, that Amazon could not be held liable under Maryland products liability law for the damage the product allegedly caused, the Sixth Circuit has ruled that a tort claim under Tennessee law against Amazon in connection with the sale of a hoverboard can move forward.
The Case
Charles Brian and Megan Fox, individually and as parents and next friends of their minor children Hailey, Matthew, Rebecca, and Sarah Fox, who resided in Davidson County, Tennessee, sued Amazon after a hoverboard Ms. Fox had purchased on Amazon.com from W2M Trading Corp. – a “co-seller,” in the Foxes' opinion; a “third-party seller,” according to Amazon – caught fire and destroyed their home.
The Foxes' complaint alleged that Amazon:
(1) Sold Ms. Fox a defective or unreasonably dangerous product, in violation of the Tennessee Products Liability Act of 1978 (“TLPA”), Tenn. Code Ann. § 29-28-101 et seq.;
(2) Caused Ms. Fox confusion or misunderstanding about the source of that product, in violation of the Tennessee Consumer Protection Act of 1977 (“TCPA”), Tenn. Code Ann. § 47-18-101 et seq.; and
(3) Breached a duty to warn Ms. Fox about the defective or unreasonably dangerous nature of the product, in violation of Tennessee tort law.
The U.S. District Court for the Middle District of Tennessee granted summary judgment in favor of Amazon, and the Foxes appealed.
The Sixth Circuit's Decision
The circuit court affirmed the district court's decision with respect to the first and second causes of action – but reversed on the Tennessee tort law claim.
In its decision, the Sixth Circuit reasoned that Amazon did not meet the TPLA's definition of “seller” because it did not exercise sufficient control over the hoverboard. It also found that the Foxes had not sufficiently alleged that Amazon had deceptively caused Ms. Fox to believe that it owned the hoverboard and that she was purchasing it from Amazon.
The circuit court, however, reversed the district court's decision on the Foxes' Tennessee tort law claim. It noted that the Foxes alleged that Amazon had gratuitously undertaken to warn Ms. Fox of the dangers posed by the hoverboard when it sent her an email before the hoverboard caught fire that stated:
There have been news reports of safety issues involving products like the one you purchased that contain rechargeable lithium-ion batteries. As a precaution, we want to share with you some additional information about lithium-ion batteries and safety tips for using products that contain them.
Moreover, the circuit court added, the Foxes also alleged that Amazon was negligent in that undertaking, and that its negligence had caused them harm.
In the Sixth Circuit's opinion, Amazon “plainly recognized the warning as necessary for the protection of a third party or [the third party's] things.” It then held that Amazon had assumed a duty to warn Ms. Fox of the dangers posed by the hoverboard when it sent her the email.
The circuit court concluded that there were genuine issues of material fact regarding whether Amazon had breached that duty and whether any breach had caused the Foxes physical harm, and it reversed the district court's dismissal of this claim.
The case is Fox v. Amazon.com, Inc., No. 18-5661 (6th Cir. June 10, 2019). Attorneys involved include: ARGUED: Steven E. Anderson, ANDERSON & REYNOLDS, PLC, Nashville, Tennessee, for Appellants. Brendan Murphy, PERKINS COIE LLP, Seattle, Washington, for Appellee. ON BRIEF: Steven E. Anderson, ANDERSON & REYNOLDS, PLC, Nashville, Tennessee, Mark E. Spear, Kaylin L. Hart, SPEAR, SPEAR & HAMBY, P.C., Mobile, Alabama, Donald Capparella, DODSON PARKER BEHM & CAPPARELLA, P.C., Nashville, Tennessee, for Appellants. Brendan Murphy, Eric D. Miller, Rachel Constantino-Wallace, PERKINS COIE LLP, Seattle, Washington, Lela M. Hollabaugh, Scott Burnett Smith, BRADLEY ARANT BOULT CUMMINGS LLP, Nashville, Tennessee, for Appellee.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].