Tag: negligence

Amazon faces liability for assuming a duty to act, by sending email warning of hoverboard fires

Online marketplaces should take note – sometimes trying to do the right thing will create more legal exposure. 

Plaintiffs tragically lost their home and suffered injuries in a fire caused by a hoverboard they bought through Amazon. They sued Amazon. Their negligence claim arose under Tennessee tort law, arising from the principle set out in Restatement (Second) of Torts § 324A, which states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Plaintiffs claimed that defendant Amazon gratuitously undertook to warn the purchaser of the hoverboard (one of the plaintiffs) of the dangers posed by the hoverboard when it sent her an email outlining some of the dangers with hoverboards. Plaintiffs claimed that Amazon was negligent in that undertaking, and that the negligence caused plaintiffs harm.

The lower court granted summary judgment in Amazon’s favor, but the Sixth Circuit reversed the summary judgment order. It held that when Amazon chose to send the email to the one plaintiff, and in so doing sought to warn her of the dangers posed by the hoverboard, it assumed a duty to warn. There remained genuine issues of material fact as to whether Amazon breached that duty and whether any breach caused plaintiffs’ harm.

For instance, there was a genuine issue of material fact regarding whether Amazon’s failure to include certain information in the email amounted to negligence. The email did not inform hoverboard purchasers of any of the actions Amazon had taken to evaluate the dangers posed by hoverboards, including the findings and results of its internal investigation. The email did not inform hoverboard purchasers that the reported safety issues included a risk of fire or explosion. And the email did not inform hoverboard purchasers that Amazon had ceased all hoverboard sales worldwide.

And there was a genuine issue of material fact regarding whether the plaintiff read the email, and thereby could have acted in reliance on it. Though plaintiff had no specific recollection of reading the email, she “had a habit” of reading emails sent to her email address. She also testified that she would not have let the hoverboard enter or remain in her home had she known, among other things, that there had been 17 complaints of fires or explosions in the United States that involved hoverboards purchased on Amazon, that Amazon anticipated additional complaints, particularly during the upcoming holiday season, or that Amazon had ceased all hoverboard sales worldwide.

Fox v. Amazon.com, Inc., 2019 WL 2417391 (6th Cir. June 10, 2019)

BitTorrent defendant not negligent for failing to secure home Wi-Fi network

AF Holdings, LLC v. Doe, 2012 WL 3835102 (N.D. Cal., September 4, 2012)

Copyright troll plaintiff AF Holdings sued defendant for, among other things, negligence for failing to secure his home wi-fi network. Plaintiff argued that defendant’s inaction allowed a third-party to commit large-scale infringement of AF Holdings’ copyrighted works.

Defendant moved to dismiss for failure to state a claim. The court granted the motion and dismissed the negligence claim.

It held that a defendant like the one in this case had no duty to protect another from harm in this situation of “non-feasance” (i.e, failing to do something) unless a special relationship existed which would give rise to such duty. In law school this principal is articulated through the hypothetical of standing on a lakeshore watching someone drowning — you don’t have to jump in to save the person unless you are a lifeguard (or the victim’s parent, or a member of some other very limited class).

The court found that no special relationship existed here, thus plaintiff had not articulated any basis for imposing on defendant a legal duty to prevent the infringement of plaintiff’s copyrighted works.

We talked about this issue, along with other issues like copyright preemption, as it arose in a different case back on Episode 170 of This Week in Law beginning at about the 19 minute 40 second mark:

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