Cliff Rieders

Heather Oberdorf took her dog for a walk, using a retractable leash. The dog lunged causing the D-ring on the collar to break. The leash recoiled hitting Oberdorf’s face and eyeglasses. She was permanently blinded in her left eye.

Judge Matthew Brann of the U.S. District Court for the Middle District of Pennsylvania dismissed the case finding that Amazon was not liable for Overdorf’s injuries.

Judge Jane Richards Roth of the U.S. Court of Appeals for the Third Circuit, writing for the majority of the panel, reversed Brann’s decision and reinstated the case in Oberdorf v. Amazon.com, No. 18-1041 (3d Cir. 2019). Amazon asked for rehearing en banc. Brann was a Republican nominee from President Barack Obama and Republican Jane Richards Roth, a du Pont descendant, was nominated by George H.W. Bush. The Pennsylvania Supreme Court in Musser v. Vilsmeier Auction, 522 Pa. 367, 562 A.2d 279 (Pa. 1989), listed four factors to consider in determining whether a party is a “seller.” The four considerations are whether the seller is the only member of the marketing chain available to the injured plaintiff for redress; whether the imposition of strict liability serves as an incentive for safety; whether the seller is in a better position than the consumer to prevent circulation of the defective product; and whether the seller can distribute the cost of compensation for injuries resulting from the defect by how it charges.

The court found that all of the traditional factors militate in favor of Amazon being considered a seller. For Amazon to argue otherwise seemed to be an exercise in futility and intellectual dishonesty.

The fact that a business works primarily through the internet should not insulate that business from being responsible for defective product which it sells. The concept behind products liability law since a steering wheel fell off a Buick automobile in 1909 resulting in the seminal decision, MacPherson v. Buick Motor, is that the emphasis in connection with safety must be on the product, not the behavior of the seller. Here, the product was defective and Amazon was hoping to escape the bite of the law, leaving the blinded woman with no redress of grievances.

The second and equally interesting issue is whether Amazon should be liable for failure to provide adequate warnings about the product. The court found a warnings claim was barred by Section 230 of the CDA (Communications Decency Act of 1996. The CDA is a federal law protecting a computer service from being treated as the publisher or speaker as to any information provided by another information content provider. This unfortunate law serves as a shield to some of the biggest companies in the world.

The court ruled that Section 230 of the CDA precludes courts from entertaining claims that would place the computer service provider in a publisher’s role. The court further quoted from the statute supporting the conclusion that the law is intended to allow interactive computer service companies to perform some editing on user-generated content without becoming liable for defamatory or otherwise unlawful messages which they did not edit or delete. It seems that the scope of the CDA should be much more narrow than was interpreted by the court in Oberdorf v. Amazon.

The Third Circuit, however, opined that courts throughout the country have interpreted the CDA provision broadly. The court acknowledged that Amazon exercises online editorial functions. The court also did not agree with Amazon that Oberdorf was merely attempting to treat Amazon as the publisher or speaker of information provided by another. Amazon is a “seller.” Amazon plays a major role in the sales function including receiving customer shipping information, processing customer payments, relaying funds and information to third-party vendors and collecting fees it charges for providing services.

To the extent that Oberdorf’s negligence and strict liability claims address Amazon’s role in the sales process, they are not barred by the federal CDA. The inquiry did not end there. The Third Circuit held that to the extent that Oberdorf alleged that Amazon failed to provide or to edit adequate warnings with respect to the use of the dog collar, that activity falls within the publisher’s editorial function. Failure to warn claims are barred by the CDA

Judge Joseph Scirica dissented, in part, and concurred in part. The Judge noted that no Pennsylvania court has yet examined the products liability of an online marketplace like Amazon. The Judge believed that Amazon was not the seller of the dog leash under Pennsylvania law and therefore was not liable for the product defect. The Judge of course agreed that the CDA provided immunity on the warning claim.

The view by some that companies like Amazon should be given a free pass with respect to sale of defective products flies in the face of reason, logic, and Pennsylvania law. To suggest, as the dissenting judge does, that Amazon’s role is “tangential” to the actual exchange between the customer and third-party seller is most unrealistic. Amazon makes the deal. Amazon does more than offer a marketplace, but in fact is one gigantic incomprehensively large department store. The fact that Amazon functions on the internet should never be a shield to its liability as a “seller.”

The Pennsylvania Supreme Court is the final arbiter of Pennsylvania law and when the U.S. Court of Appeals for the Third Circuit provides an opinion as to what Pennsylvania law is, it is merely exercising its “dubious oracularity” (to quote the infamous federal judge, Judge Malcolm Muir) as to what the state law is. Ultimately the decision concerning the responsibility of internet department store giants like Amazon will be decided by the Pennsylvania Supreme Court.

Cliff Rieders is a board-certified trial advocate in Williamsport. He is past president of the Pennsylvania Trial Lawyers Association and a past member of the Pennsylvania Patient Safety Authority. Contact him at crieders@@riederstravis.com.