The team at Dodson Parker Behm & Capparella, PC shares updates and thoughts on developments in the law.

Amazon Can Be Liable for Negligent Assumption of Duty to Warn for Website Sale of Dangerous Product

June 21, 2019

In 2015, online retailer Amazon, Inc. sold more than 250,000 hoverboards through its website.  By November 2015, Amazon knew that these products presented a risk of explosion. Amazon stopped selling the hoverboards and emailed customers with an “Important Product Safety Notification” that mentioned news reports of safety issues and offered information on how to return the product, Amazon did not, however, inform customers of the risk of explosion or fire. Amazon intentionally sent a “non-alarmist” email so as to avoid “headline news.”

In 2016, over half a million “hoverboards” were recalled because of the tendency to combust. The damages caused by these “exploding” hoverboards resulted in lawsuits around the country. The nature of the online business and the importation of products meant that plaintiffs were often unsuccessful in locating the actual manufacturer of the products. So, they sued online retailer Amazon, seeking to hold it liable for selling such a dangerous product on its website.

The Fox family of Nashville was among those seeking to hold Amazon responsible selling the dangerous hoverboards. In 2016, the Fox family of Nashville lost their home to a fire when a hover board sold by Amazon, Inc. exploded. The children, who were trapped on the second floor of the home, had to jump from windows to escape.  The Fox family sued Amazon for negligent failure to warn of the dangers of the hoverboard product.

Throughout the country, Amazon’s repeated response to these lawsuits was that it was merely a “marketplace” that connected sellers with customers directly. In this way, Amazon argued, it was unlike a “big box” store like Wal-Mart that actually sold the products to customers. This legal theory prevailed in many jurisdictions. And, in the Fox family’s suit, Amazon once again won at the trial court via “summary judgment,” with a legal ruling that Amazon was not responsible because it could not be considered a seller of the product under Tennessee law.

The Foxes appealed the ruling to the U.S. Court of Appeals for the Sixth Circuit, which reversed the judgment of the trial court.  The Court of Appeals held that Amazon assumed a duty to warn of the dangers posed by the hoverboards, and there remained material issues of fact as to whether Amazon was negligent in their failure to adequately warn of those dangers.  It remanded the case for a jury trial on the theory of negligent failure to warn.

DPBC’s Donald Capparella was appellate counsel for the Fox family on appeal, along with co-appellate counsel, Steven Anderson.


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