On August 13th, 2020 California law changed with a landmark decision in Bolger v. Amazon, 4th District Court of Appeals, holding Amazon strictly liable for selling a defective product manufactured by a Hong Kong company.
Bolger bought a replacement laptop computer battery on Amazon.com, LLC. The seller was “E-Life,” a fictitious name used by Lenoge Technology (HK) Ltd. The trial court dismissed Bolger’s lawsuit and the San Diego Court of Appeals reversed finding that Amazon’s role in the sale was pivotal and that it can be held strictly liable for defective products sold through its website.
The decision is significant because it treats Amazon as distributor or retailer for purposes of strict tort liability, even though it does not own the products and served as a conduit, a significant one at that.
For decades my law firm has represented consumers injured defective products manufactured by major corporations. In those cases the manufacturer, wholesalers, distributors and retail sellers are named as defendants because they are liable as a result of selling a defective product. Now that rule applies to all online retailers like Amazon as a result of Bolger.
This is a big change for consumers because California does not give a safe haven to “innocent” sellers.
Unlike other states, California imposes on manufacturers and sellers an on-going duty to warn which does not end at the time of sale or distribution. “A manufacturer’s duty to warn is a continuous duty which lasts as long as the product is in use.” Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467 at 1482. That rule now applies to products bought through online retailers like Amazon and Walmart.
Before the COVID-19 pandemic, online purchases were reaching 15 percent of total sales. Forecasters expect US e-commerce to be 18% of sales in 2020 with Amazon and Walmart in the lead. There is no reason that Amazon and other like online retailers should enjoy “sacred cow” status and be insulated them from consumer protection laws that apply to all other retailers. Bolger makes that a reality.
Bolger will force Amazon to be pro-active to assure products sold via its site are safe. At least 40 percent of Amazon’s third-party suppliers that sell more than $1 million annually are based in China, where counterfeit, and substandard products are common. As a practical matter suing a Chinese company is hopeless and most will have disappeared years later when the defect causes injury. Even if they can be found, collecting from them is impossible.
In all likelihood Amazon and Walmart and other major online retailers will remain in business and under Bolger and Valentine can be held responsible to make sure that consumer products manufactured by foreign corporations meet the same safety standards as the stores you buy from directly.
While Bolger was unfolding in the courts, on June 11, 2020, the California Assembly approved 54-14 Assembly Bill 3262 to hold online marketeers, like Amazon and Walmart, to the same legal standard as traditional brick and mortar stores when they sell defective and dangerous products that cause injuries or deaths. The 54 “ayes” in the Assembly rejected industry arguments that consumer protection laws should not apply to e-commerce companies and qualifies the bill to become law immediately; 27 Senate votes are required for immediate implementation on signing. On August 5th the bill had a second reading in the Senate and has been re-referred to the Senate Judiciary Committee. With Bolger passage and enactment of AB 3262 is highly probable.
Contact Our San Jose Defective Product Liability Attorneys for Immediate Help
Alexander Law Group, LLP attorneys are available to answer questions and share our knowledge of the law and the results of our research and experience. Our goal as personal injury lawyers is to make a difference for our clients. Every day we deal with a range of health and safety issues that most people do not encounter until after an injury occurs. As safety lawyers we are committed to providing our clients and the public with information for safer and healthier living. Call 888-777-1776 or contact us online to schedule a consultation to see how we can help you.