Amazon Can Be Liable for Negligent Assumption of Duty to Warn for Website Sale of Dangerous Product
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.
Fall at Convenience Center Not From “Open and Obvious” Cause; Plaintiff Entitled to Recover Damages
Getting a case reversed on appeal is difficult under any circumstances. Where negligence cases are concerned, it is particularly difficult. Negligence cases in Tennessee are governed by the principle of “comparative fault.” This means that, where premises liability cases are concerned, in order for a plaintiff to recover damages a court must find the plaintiff’s own negligence, if any, to be less than 50% of the “proximate cause” of the injuries. Fault is a “question of fact,” and reviewing courts give great deference to the “fact-finder,” which is often a jury and sometimes the trial judge. That deference to the fact-finder means that allocations of fault are rarely disturbed on appeal. The opinion from the Tennessee Court of Appeals in Osborne v. Metropolitan Gov’t of Nashville and Davidson Co. shows once more how difficult it is to change the outcome of a case once fault has been determined at the trial court level.
On February 28, 2015, Ronald Osborne was dropping off some garbage at the East Nashville Convenience Center, a facility operated by the local government. The trash bin was elevated approximately five feet off the ground. When Mr. Osborne headed to the back of his truck to unload the garbage, he stepped into a 15-inch drainage cut that had been placed at the back of the concrete barrier surrounding the platform. He fell and was hurt.
Mr. Osborne sued the city for negligence, alleging that the city had failed to maintain the property in a reasonably safe condition and had failed to comply with safety standards and local codes. The trial court concluded that the city was 80% at fault for Mr. Osborne’s injuries and that Mr. Osborne was 20% at fault for failing to notice the drainage cut. Metro appealed, arguing that the trial court erred in finding Mr. Osborne only 20% at fault.
Metro made a number of arguments that Mr. Osborne was at least 50% responsible for his fall. For instance, Metro argued that Mr. Osborne should have exercised heightened care for his own safety because of the nature of the facility, i.e,. a place where residents dispose of heavy appliances and other dangerous materials. The Court, however, noted that the drainage cut causing Mr. Osborne’s fall was not “open and obvious,” and no signs or other warnings were in place to warn patrons of the danger. Therefore, the Court found that “Metro was in the best position to remedy the danger,” and Mr. Osborne’s failure to notice it was not “the overriding cause of his injuries.” This, in addition to the fact that Mr. Osborne’s prior visits to the Center had led him to reasonably expect there were no holes, led the Court to find that the evidence did not preponderate against the trial court’s finding of 20% fault.
The judgment of the trial court was affirmed, and Metro was deemed liable for its part in Mr. Osborne’s injuries.
Tennessee Survival Statute Still Confuses Practitioners
What do you do when a defendant dies before suit has been filed? The recent Tennessee Court of Appeals opinion in Putnam v. Leach reminds practitioners that the survival statute and the discovery rule are not the same thing.
On February 2, 2015, Julia Putnam was injured in a motor vehicle accident with Bryane Litsinberger. Exactly one year later, Ms. Putnam and her husband filed suit against Mr. Litsinberger, alleging that his negligence caused the accident. On February 26, 2016, the summons was returned to the Putnams’ attorney with a note that Mr. Litsinberger had passed away on January 4, 2016. However, the Putnams claimed that they did not discover this until the following July, when their attorney noticed the note. On October 21, the Putnams petitioned the probate court to appoint an administrator ad litem to receive process for the lawsuit, which was done that day. Several days later, on October 31, the plaintiffs filed an amended complaint naming the administrator ad litem of the estate, John W. Leach, as the defendant. Mr. Leach moved to dismiss, arguing that the Putnams had not commenced the lawsuit within the applicable one-year statute of limitations. The Putnams argued that the statute of limitations did not commence until after they had discovered Mr. Litsinberger’s death. The trial court disagreed, granting the motion to dismiss. The Putnams appealed.
The Court began by addressing the Putnam’s argument that under the discovery rule, the one-year statute of limitations did not begin to run until after the plaintiffs had discovered Mr. Litsinberger’s death. The Court took issue with this claim, noting that the discovery rule exists to help plaintiffs suffering from “latent” injuries by tolling the statute of limitations “until the plaintiff knows, or reasonably should know, enough information concerning his or her injuries.” In this situation, Ms. Putnam was aware of her injuries from the moment they occurred, so the discovery rule was inapplicable and the statute of limitations began running on the day of the accident.
Next, the court turned to the Tennessee survival statute, T.C.A. § 20-5-103, which provides that where a plaintiff has a cause of action against a defendant and the defendant passes away, the plaintiff must name the personal representative of the estate as the defendant. Where, as here, there is no personal representative, the plaintiff must petition the probate court to appoint an administrator ad litem. The statute further provides that when a potential defendant dies, the applicable statute of limitations is tolled for six months. Here, the Court found that the six month tolling period ended on July 4, 2016, giving the plaintiffs until August 2 to meet their deadline. However, the plaintiffs waited until late October to petition for an administrator ad litem, even though they had discovered Mr. Litsinberger’s death in mid-July. Since the plaintiffs failed to file a complaint against the appropriate party – the administrator ad litem—by August 2, the Court found that the suit was time-barred.
Defendant Denied Chance to ID Other Parties Potentially At Fault; Affirmative Defense Reinstated
Naming “John Does” as defendants or comparative torfeasors is a necessary and customary practice in hit-and-run cases. This allows the parties to conduct discovery to identify information that can lead to a determination of who should be held at fault and whether a defendant can be sufficiently identified to be served with process. The case of Santore v. Stevenson dealt with the question of how much leeway a court must give to parties seeking to identify a John Doe. (Spoiler alert: the answer is “a reasonable opportunity”).
In November 2013, Steven Santore sustained injuries after being struck by a vehicle in a gas station parking lot. Eight months later, Mr. Santore filed suit against Cordova Concrete, Inc. (“CCI”), and one of its drivers, Karloss Stevenson, alleging that Mr. Stevenson had been responsible for the accident while driving a CCI truck.
At some point after CCI filed its answer, CCI learned that an unidentified person had called 911 from the scene of the accident. After multiple unsuccessful attempts to subpoena the 911 recording, CCI filed a public records request. Finally, on June 1, 2016, CCI obtained a copy of the records, and based on that information, began working to identify the caller. After making repeated phone calls to the number from which the call had been placed, CCI finally got in touch with the caller, an over-the-road truck driver from out of state, and arranged to take his deposition on August 29, 2016. During the deposition, the caller identified the vehicle that had struck Mr. Santore as an Averitt tractor trailer truck, but was unable to identify the driver.
On September 20, 2016, over two years after the complaint had been filed but less than three months after CCI had obtained the 911 records, CCI moved to amend its answer to assert the affirmative defense of comparative fault against the unidentified driver (“John Doe”) and trucking company Averitt Express. Shortly thereafter, plaintiffs amended their complaint to add the parties as additional defendants.
In October, Averitt moved to strike CCI’s affirmative defense implicating John Doe and Averitt. The trial court granted the motion with regard to John Doe, citing CCI’s failure to identify him with the requisite degree of specificity. The trial court later granted the motion as to Averitt, finding that CCI had failed to state a legal cause of action upon which relief could be granted.
After its motion for an interlocutory appeal was denied, CCI filed a Tenn. R. Civ. P. 60.01 motion seeking to modify the trial court’s order to strike the affirmative defenses to obtain the entry of a final judgment as to all claims against Averitt and John Doe. The trial court granted the motion, and CCI appealed.
Supreme Court Reaffirms Collateral Source Rule
On June 2, 2016, the Tennessee Court of Appeals issued its opinion in Dedmon v. Steelman, an opinion which was a shot heard around the State of Tennessee regarding its possible impact on the collateral source rule in Tennessee in thousands of personal injury cases. The majority opinion was authored by Judge Brandon Gibson, with a concurrence by Special Judge Joe G. Riley. The impact of the opinion quickly became a heated topic of debate among parties, practitioners, and the bench. Some courts found that the collateral source rule remained in force in Tennessee, and that the Dedmon opinion had changed nothing. Others determined that the collateral source rule had been augmented such that the amount of medical bills that could be proven by the plaintiff as reasonable was only the amount that was actually paid. Some took a hybrid approach, allowing the jury to hear both the full, un-discounted amount of bills as well as the discounted amount. The entire bench and bar waited with baited breath for the Supreme Court to weigh in… read more
Settlement Agreement Enforceable; Attorney Emails Are the Proof
This case is a good example of why attorneys should always demonstrate professionalism in their communications. You never know when your email to opposing counsel is going to turn up as an exhibit… read more
Court of Appeals Provides Guidance on Statutory Summary Judgment Standard
The Tennessee Supreme Court’s 2015 decision in Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015) established that Tennessee generally follows the federal standard where summary judgment motions are concerned, but left many open questions–particularly regarding the interplay between the Rye decision and the pre-existing Tennessee statutory summary judgment standard. (See our write-ups here and here.) But, the Court of Appeals has recently provided some help for practitioners… read more
Dance Party Results in Injuries But No Liability
The Court of Appeals recently examined potential liability from a deck collapse during a party attended by “a ridiculous amount” of high school students. The upshot? It seems like a determination that having lots of people jumping and dancing on a deck doesn’t make it forseeable that the deck could break and hurt people… read more
Wrongful Death Claims Present Challenges for Surviving Family Members
The recent Tennessee Court of Appeals case Nelson v. Myres, offers a succinct and helpful analysis as to who has the priority right to bring a wrongful death claim, particularly in the situation where the surviving spouse may bear some responsibility for the death. read more
Employer Not Responsible For Injuries to Employee Who Was Sent Home For Suspicion of Drug Use
In a negligent entrustment action, the employer’s ability to control the employee when he leaves the premises is the essential issue. Knowledge of the employee’s incompetency is also important. Here, the facts didn’t establish that the employer was at fault. read more