Less than two months after turning down a Lorain County man’s motion for reconsideration of a decision upholding summary judgment in favor of Amazon in a wrongful death suit, the Supreme Court of Ohio accepted the man’s second motion.
A cursory review of Dennis Stiner’s motion filed July 2 reveals what must have made the difference in justices’ consideration the second time round — a Sixth Circuit Court of Appeals decision in Fox v. Amazon.com, Inc., No. 18-5661, 2019 U.S. App. LEXIS 17286 (6th Cir. June 10, 2019).
Stiner noted in his memorandum that the Fox ruling addressed critical issues in his case against the behemoth online retailer and that the federal appellate ruling not only refuted arguments that Amazon had advanced in the lower courts, but suggested a framework for analysis that the Lorain County appellate court did not apply.
According to case summary, the suit against Amazon resulted from the death of Stiner’s 18-year-old son Logan, who died after ingesting a pure caffeine powder purchased on Amazon.com by Logan’s friend who had been seeking a workout supplement.
Amazon maintained that it acted solely as a “neutral platform” in the sale of the item from a third-party seller, despite promoting the product to the friend and recommending the caffeine powder to Logan as an Amazon item “you may like.”
The trial court granted summary judgment in Amazon’s favor and the appellate court affirmed the decision, prompting Stiner to ask the high court to rule on his assertion that courts must apply public policy considerations underlying state consumer protections laws in instances of an internet provider acting as more than a neutral platform and actively promoting the sale of a deadly product.
Additionally, he asked the court to decide if an internet provider becomes a supplier when it promotes, introduces and recommends a deadly consumable product.
“In Fox, the Sixth Circuit provides guidance, applies public policy considerations, and rejects the notion, advanced by Amazon, that such application is somehow a usurpation of the legislature’s role,” Stiner’s motion detailed. “This court should reconsider its decision declining jurisdiction and take the opportunity, in light of Fox, to provide its own guidance to Ohio courts.”
The plaintiff in Fox purchased a hoverboard on Amazon.com, background provided. It was undisputed that a lithium-ion battery in the hoverboard caused a fire which injured members of plaintiff’s family and destroyed their home. Plaintiffs sued Amazon, alleging a breach of Tennessee’s Product Liability Act and breach of a duty to warn.
The issue in Fox was whether Amazon was a “seller” under the state product liability act, which defined a seller as any individual or entity engaged in the business of selling a product, and included distributors and bailors in that definition.
The Sixth Circuit rejected Amazon’s argument that a seller under the Tennessee law should be restricted to entities “regularly engaged in transferring title to a product,” on the basis that legislature could not have intended such a limited construction.
The court accepted the plaintiff’s assertion that a seller is any entity “regularly engaged in exercising sufficient control over a product in connections with its sale … for livelihood or gain.”
Stiner also argued with respect to shifting risk and ensuring the compensation of injured consumers, the Sixth Circuit looked to Amazon’s wealth and dominance — something Amazon has insisted should not be factors in determining its supplier status.
“Here, as in Fox, the product originated with a Chinese entity beyond the reach of U.S. courts,” the memorandum posited. “It was posted on Amazon.com by a small entity that is now insolvent. Plainly, Amazon was the entity most likely to compensate — and compensate fully — the injured party.
“The Sixth Circuit also flatly rejected the notion … that Amazon could not have done anything to ensure product safety.”
He argued the record is replete with evidence the online retailer had the knowledge and capacity to keep the deadly caffeine powder off its website.
“Amazon not only failed to act to protect consumers; it recklessly promoted the powder and introduced it to Logan’s friend,” the memorandum concluded. “As the court notes, Amazon could have demanded safety compliance documentation and it could have otherwise responded to warnings about the powder’s capacity to kill.”
Justice Michael Donnelly voted with the majority each time in favor of reconsideration, while Chief Justice Maureen O’Connor and justices Sharon Kennedy and Melody Stewart dissented from the majority ruling to accept the second reconsideration motion.