By Joseph A. White, Fried & Bonder, LLC
When is Amazon liable for selling a dangerous product to a consumer? And what facts must a plaintiff allege to state a claim against Amazon that will survive a motion to dismiss?
The United States District Court for the Northern District of Georgia recently addressed such questions in Love v. Weecoo, CIV.A. File No. 18-CV-540-TWT (October 17, 2018). The case involved a hoverboard manufactured by a Chinese company, which the plaintiff purchased through Amazon. The hoverboard caught fire, injuring the plaintiff and burning down his home.
He sued Amazon (among others), alleging claims for negligence and failure to warn. Amazon moved to dismiss the plaintiff’s complaint in its entirety. The district court granted the motion, finding that the plaintiff failed to allege enough facts showing that Amazon knew the hoverboard posed a danger to the plaintiff.
The Court began its analysis by quoting the general rule that “[a] product seller can be liable for negligent failure to warn if ‘at the time of sale, it had “actual or constructive knowledge” that its product created a danger for the consumer.’” Gomez v. Scepter Holdings, Inc., CIV.A. No. 3:17-CV-42, 2017 WL 4366733, at *3 (M.D. Ga. Sept. 29, 2017) (citations omitted).
Although the plaintiff’s complaint identified four pre-sale fires involving Amazon-distributed hoverboards (those incidents occurring 1, 2, 4 and 11 days before Amazon shipped the hoverboard to the plaintiff, respectively), the district court found the plaintiff’s allegations regarding Amazon’s knowledge of these incidents lacking. “The Plaintiff asserts that . . . Amazon ‘knew’ about these incidents [but] without describing how, when or where . . . Amazon received notice of these incidents.” Also lacking were facts demonstrating substantial similarity between the prior incidents and the plaintiff’s own. “Here, the plaintiff has provided no facts from which to glean whether these prior incidents were sufficiently similar to the one that gives rise to the suit. Indeed, the Plaintiff omits particularly salient facts like the brand or brands of hoverboard involved in these incidents and the circumstances that gave rise to the fires.”
The district court’s decision can be fairly viewed through two prisms. One the one hand, its decision is hardly surprising in a post-Twombly and Iqbal world, in which district courts will increasingly scrutinize a complaint’s factual content—and refuse to take at face value factual allegations that are deemed “conclusory” or “implausible.” On the other hand, the outcome seems harsh given a plaintiff’s limited ability to discover facts, pre-suit, about a defendant’s knowledge of a product’s danger. It would seem to be the rare case in which a plaintiff could establish from publicly-available information (rather than through the litigation discovery process) that a defendant knew a product posed a danger. Nevertheless, in this case, that is what the district court seemed to require, and its decision foreclosed plaintiff from engaging in discovery to obtain additional information about the state of Amazon’s knowledge.