Consumer Safety
spring 2021





Can online marketplaces be held accountable for defective products?

Blue retractable leash for dogs on a white background.

Over the past couple of decades people have been doing an increasing amount of their shopping online. In many cases, they’re buying products directly from retailers’ and manufacturers’ websites. But in at least as many other cases they’re purchasing from online marketplaces like Amazon, eBay and Etsy.

If you are buying directly from a retailer or manufacturer’s site, you can very likely hold that company accountable for selling an unreasonably dangerous or defective product if the facts are in your favor. But what if a product you purchase through an online marketplace is defective and hurts you?

In many instances, it can be hard to go after the seller or the manufacturer itself, which may be located in another country. These sellers also often lack the assets to compensate you for your harm. But courts across the country are coming to varying conclusions about whether you can hold the marketplace responsible for your harm instead.


In many instances, it can be hard to go after the seller or the manufacturer itself, which may be located in another country.


Take, for example, the case of Heather Oberdorf, a Pennsylvania woman who purchased a retractable dog leash on Amazon.com. While she was walking her dog, the leash suddenly malfunctioned, snapping backwards and hitting her violently in the face, causing permanent loss of vision in her left eye.

She had purchased the leash from a third-party vendor that made its product available on Amazon, and when she tried to follow up she couldn’t reach either the company or the manufacturer. So Oberdorf opted to bring a “strict products liability” claim against Amazon, alleging that the leash was unreasonably dangerous and the marketplace failed to adequately warn her of the risk.

A federal judge threw out the case, ruling that an online marketplace like Amazon was not considered a “seller” that could be held responsible. A federal appeals court reversed that decision, but has since agreed to rehear the case.

Amazon plans to argue that it can’t be liable if it’s not “in the business” of selling the product in question, while the plaintiff plans to argue that Amazon exerts enough control over parties using the marketplace that it should have some responsibility for the transactions.

The California Court of Appeal recently decided the same issue under California law. In that case, a woman bought a replacement laptop battery on Amazon.com. The battery caught fire and severely burned her.

A trial judge found that because Amazon did not make, sell or distribute the battery itself, it couldn’t be held responsible for selling an unreasonably dangerous product. But the Court of Appeal reversed, ruling that Amazon was “pivotal in bringing the product to the consumer.”

Amazon has since appealed to the California Supreme Court, where the case is pending.

Meanwhile, the Ohio Supreme Court recently addressed whether Amazon could be considered a “supplier” under Ohio products liability law and thus be held accountable for unsafe products sold on its site. In that case, a teenager searching Amazon for a “pre-workout” supplement bought a product called “Hard Rhino Pure Caffeine Powder” on the site. The product was sold by a third-party vendor. The purchaser gave some of the powder to a friend of hers, who died from cardiac arrhythmia and acute caffeine toxicity.

The victim’s father was unable to serve complaint on the Chinese manufacturer and sued Amazon. But the state supreme court ruled that because the vendor didn’t participate in Amazon’s “fulfillment program,” where Amazon takes delivery of products from its sellers and distributes them through its warehouse network, Amazon was not a supplier in this case. This still leave an open question as to whether Amazon might have been liable if the vendor had been part of the fulfillment program.

As you can see, this is a developing area of the law and courts in different parts of the country may view the issue differently. If you want to learn more, talk to an attorney where you live.

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Mobile home park liable for slip-and-fall in pool

Swimming Pool

In many states, if you get hurt as a result of an “open and obvious danger,” you’re generally out of luck because whoever owns the property has no duty to warn you about or protect you from such a hazard. Instead, it’s your responsibility to protect yourself.

But if you’ve been hurt by a condition that, in retrospect, seems like it was open and obvious, you should still talk to an attorney because you may still have rights.


If you’ve been hurt by a condition that seems like it was open and obvious, you should still talk to an attorney because you may still have rights.


Take, for example, a recent case from Michigan, where Debra Sedlecky slipped and fell entering a pool in her residential mobile home community.

Sedlecky sought to hold the community responsible for her harm, arguing that the stairs were unreasonably dangerous. In making her case, she pointed out that the steps she slipped on did not have slip-resistant treads. She also noted that the steps did not have contrasting colors on their front edges to make them more visible in the water or a handrail that was up to code and extended the length of the stairs.

The community said the slippery nature of the stairs was open and obvious and that they were fit for their intended use. It also argued that video footage showed that Sedlecky slipped because of her own physical limitations and not because of any problem with the stairs, which had passed a state inspection two weeks earlier.

A trial judge agreed with the community and dismissed the case.

But the state Court of Appeals reversed the decision, concluding that Sedlecky had provided enough proof that the stairs violated state safety laws and codes regardless of the results of the inspection.


The court also said the video didn’t make it clear if the plaintiff’s knee gave out or if the plaintiff slipped.


The court stressed that the stairs may have become noncompliant by the time of Sedlecky’s fall.

The court also said the video didn’t make it clear if the plaintiff’s knee gave out, as the community argued, or if the plaintiff slipped. Now Sedlecky will get a chance to have a jury determine whether the community should compensate her for her harm.

Driver’s intoxication doesn’t bar recovery
for collision with truck

Most people would assume that a drunk driver who hits another vehicle and suffers injuries is out of luck. But a case from South Carolina suggests that’s not always the case.

The driver in question was driving through Georgetown County before dawn on a July 2020 morning when a tractor-trailer pulled out in front of him. He crashed into the truck and suffered injuries that sent him to the hospital for a month, forcing him to undergo a cervical fusion of his spine.


Blood tests at the hospital showed that the injured driver had a blood-alcohol content of .25, roughly three times the legal limit.


Blood tests at the hospital showed that the injured driver had a blood-alcohol content of .25, roughly three times the legal limit, and had evidence of cocaine use in his system.

The driver sought to hold the truck driver and the company that owned the truck responsible.

The defendants argued that they couldn’t be responsible because the plaintiff’s intoxication caused the crash.

The driver countered that the truck was unlit at the time of the crash, so he couldn’t see it when it pulled out in front of him and he wouldn’t have been able to see it even if he had been sober. Surveillance camera footage backed up his claim that the truck’s lights weren’t visible, and federal records showed that the company had similar problems with other vehicles it owned.

While the injured driver’s intoxication may have hurt him in court, the defendants apparently were concerned enough about the other evidence that they agreed to settle the case for a substantial amount of money.

As this case illustrates, it’s a good idea to consult with an attorney anytime you’re hurt in a wreck, even if it seems like it was your fault.

Delayed brain injury results in settlement

A recent North Carolina case shows that even if an injury doesn’t seem serious at the time of an accident, it’s always worth calling an attorney, since a serious condition can manifest over time.

In that case, the driver of a construction truck blew through a stop sign and slammed into a man’s car, causing his head to slam into his windshield.

The victim was taken to the hospital, where doctors diagnosed him with a mild hematoma, or bleeding from the brain, and released him two days later with a good prognosis.

Broken car windshield

But two months later, the man started staggering around the house. He checked back into the hospital and learned that the hematoma had manifested into a serious condition requiring emergency surgery.

While the surgery saved his life, he now can barely walk, has no short-term memory and lives in a skilled nursing facility where he receives around-the-clock care.

The man’s wife filed suit against the truck driver and his employer, emphasizing in her complaint that the truck driver had numerous speeding violations as well as convictions for resisting arrest, driving under the influence, assault and driving with a revoked license.


If you’ve been hurt and you believe someone else is at fault, it’s worth calling a lawyer to discuss your case.


Despite the time lag between the accident and the man’s condition becoming severe, the driver and his employer clearly thought the victim’s family had a strong enough case that they did not want to risk trial. Instead, they agreed to a $3 million settlement.

Every case is different and an injured person’s recovery in one case does not guarantee a similar recovery in a different case. But if you’ve been hurt and you believe someone else is at fault, it’s worth calling a lawyer to discuss your case.

Informal work arrangements
create liability risks

Businessmen giving money

Many employers are tempted to pay workers under the table. But it can come back to haunt them.

A recent case illustrates this. A woman named Jennifer Drob was working as a bartender at J.J. Knapps, a Detroit-area tavern, when she injured her ankle on an uneven drain cover.

The injury required surgery, so Drob asked the bar’s owner if she could get worker’s compensation to cover it.

The owner denied her request, so she quit and brought a premises liability suit accusing the tavern owner of maintaining a dangerous condition on his property and failing to fix it or warn people about it.

The tavern moved to dismiss the suit, arguing that worker’s compensation was the only available remedy for Drob.

But during the pre-trial process, witnesses testifying in depositions said Drob had a full-time job elsewhere and had advertised her bartender services to other establishments.

Further, though she had to attend employee meetings and was subject to employee discipline, she never filled out a W-2 form.

Based on all of this, Drob argued that she was an independent contractor, not an employee, and thus worker’s comp was not her exclusive remedy. A trial judge agreed, and the state Court of Appeals upheld the decision.

Now Drob will get to bring her case to a jury, and if she can prove the accident was the tavern’s fault, she stands to collect significantly more than worker’s comp would have provided.

This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call today. The information in this newsletter was not generated by our law firm and is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.