Oberdorf et al v. Amazon.Com, Inc.

Filing 50

MEMORANDUM (Order to follow as separate docket entry) re: 29 MOTION for Summary Judgment filed by Amazon.Com, Inc. Signed by Honorable Matthew W. Brann on 12/21/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HEATHER R. OBERDORF,
MICHAEL A. OBERDORF,

No. 4:16-CV-01127
(Judge Brann)

Plaintiffs.
v.
AMAZON.COM, INC.,
Defendant.
MEMORANDUM OPINION
DECEMBER 21, 2017
Defendant Amazon.com, Inc., moved for summary judgment against
Plaintiffs Heather and Michael Oberdorf. For the reasons that follow, that motion
is granted.
I.

BACKGROUND 1
A.

The Accident

On January 12, 2015, while walking her dog, Heather Oberdorf suffered
severe and permanent injuries to her left eye when the retractable leash she was
using suddenly malfunctioned, snapping backwards and hitting her violently in the
face. 2 Although the accident was tragic, and resulted in permanent loss of vision in
1

The facts in this section are undisputed, and all inferences have been drawn in favor of the
Oberdorfs. See Standard of Review, infra § II.A.

2

ECF No. 47 Ex. A (Expert Report of Brian O’Donel) at 2.

Ms. Oberdorf’s eye, its exact cause and circumstances need not be resolved at this
stage. The focus, instead, is on how, and from whom, Ms. Oberdorf acquired the
leash.
B.

The Amazon Marketplace

Amazon.com is a well-known online retailer. In addition to selling a variety
of goods directly to consumers, it also serves as a vehicle through which third
parties may independently offer products for sale. 3 This service, known as the
“Amazon Marketplace,” is currently utilized by more than one million third-party
vendors. 4 These third-party vendors decide which products they wish to sell,
obtain their stock from manufacturers or upstream distributors, and set their own
sales price.5 They provide a description (including, perhaps, a photograph) of the
product to Amazon, which Amazon uses to create a listing on its website.6
Consumers browsing or searching for products on Amazon may be directed to
these listings, where they are informed that they are purchasing from an identified
third party, and not from Amazon itself.7

Unless the third-party vendor

participates in a special “Fulfillment by Amazon” program (which was not the case

3

ECF No. 31 (Affidavit of Nicholas Denissen) ¶ 5.

4

Id. ¶ 7.

5

Id. ¶ 10-11.

6

Id.

7

Id. ¶ 15.

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here), Amazon has no interaction with the third-party vendor’s product at any
time. 8
Amazon does, however, maintain some control over the Amazon
Marketplace sales process. It serves as the conduit through which payment flows,
collecting money from purchasers and directing it to third-party vendors after
deducting a fee. 9 It requires third-party vendors, as a condition of utilizing the
Marketplace, to agree to conduct all communication with consumers through its
messaging platform. 10 It retains the right to edit the content and determine the
appearance of product listings. 11 And it imposes rules on how third-party vendors
should handle shipping and returns.12
C.

The Furry Gang

Ms. Oberdorf purchased the retractable leash in question on the Amazon
Marketplace on December 2, 2014, from a third-party vendor identified as “The
Furry Gang.” Following the accident, Plaintiffs have apparently been unable to

8

Id. ¶ 10.

9

ECF No. 41, Ex. 4 at 16. Amazon can also withhold payments to third-party vendors for
returns and claim disputes. Id. at 15.

10

Id. at 22-23.

11

Id. at 25.

12

Id. at 34-41.

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make contact with The Furry Gang or with the manufacturer of the retractable
leash.13
D.

Procedural History

The Oberdorfs initiated this suit against Amazon on June 13, 2016.14 Their
Complaint describes the accident and contains seven claims. Count I, a strict
products liability claim, alleges that Amazon failed to “provide adequate warnings
regarding the use of the subject [leash], causing it to be unreasonably dangerous to
the intended user at the time it left [Amazon’s] possession.”15 Count II, also a
strict products liability claim, alleges that the leash was “defectively designed,
causing it to be unreasonably dangerous at the time it left the possession of the
defendant.”16 There are two claims labelled “Count III”: a negligence claim that
alleges that Amazon was negligent in “distributing, inspecting, marketing, selling,
and testing of the subject dog collar,”17 and a negligent undertaking claim, based
on §§ 323 and 324A of the Restatement (Second) of Torts, that alleges that
Amazon breached its duty to the Oberdorfs by, inter alia, “[f]ailing to conduct a
proper hazard[] analysis and address the hazard of the D-ring failure for the

13

ECF No. 40, Ex. 4 (Affidavit of David Samar).

14

ECF No. 1.

15

Id. ¶ 24.

16

Id. ¶ 35.

17

Id. ¶ 47.

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product.” 18 Count IV, a breach of warranty claim, alleges that Amazon breached
an implied warranty that the leash was fit for its intended purpose.19 Count V, a
misrepresentation claim, alleges that Amazon misrepresented the quality and
fitness of the leash.20 And Count VI, a loss of consortium claim brought by Mr.
Oberdorf, alleges that Amazon’s actions proximately caused him “great mental and
emotional anguish and loss of life’s enjoyment.” 21 The Complaint also sought
punitive damages.22
Amazon moved for summary judgment on June 30, 2017. 23 The Oberdorfs
opposed this motion on July 24, 2017,24 and Amazon replied to this opposition on
August 3, 2017. 25
II.

DISCUSSION
A.

Standard of Review

Summary judgment is granted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a

18

Id. ¶ 54.

19

Id. ¶ 60-61.

20

Id. ¶ 65.

21

Id. ¶ 76.

22

Id. § VI.C.

23

ECF No. 29.

24

ECF No. 43.

25

ECF No. 45.

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matter of law.” 26 A dispute is “genuine if a reasonable trier-of-fact could find in
favor of the non-movant,” and “material if it could affect the outcome of the
case.”27 To defeat a motion for summary judgment, then, the nonmoving party
must point to evidence in the record that would allow a jury to rule in that party’s
favor. 28 When deciding whether to grant summary judgment, a court should draw
all reasonable inferences in favor of the non-moving party. 29
B.

Whether Amazon is a “Seller” Under Pennsylvania’s Strict
Products Liability Law

Pennsylvania has adopted § 402A of the Second Restatement of Torts,
which states that:
(1)

One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused
to the ultimate user or consumer, or to his property if
(a) the seller is engaged in the business of selling such a
product, and
(b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it is
sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation
and sale of his product, and

26

Federal Rule of Civil Procedure 56(a).

27

Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 300 (3rd Cir. 2012)
(citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986).

28

Federal Rule of Civil Procedure 56(c)(1); Liberty Lobby, 477 U.S. at 249.

29

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
omitted).

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(b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.30
This provision creates a strict products liability regime, whereby a plaintiff may
recover against a defendant if he can prove, inter alia, that a product was
defectively designed or manufactured, or came with an insufficient warning of its
dangers.31
Although the Pennsylvania Supreme Court has defined “seller” under
§ 402A expansively, 32 it has not left that category boundless. 33 In Musser v.
Vilsmeier Auction Co., Inc., 34 for example, it held that an auctioneer is not a
“seller” for purposes of § 402A. There, the Court first noted the policy behind
§ 402A—i.e., the “special responsibility for the safety of the public undertaken by
one who enters into the business of supplying human beings with products which

30

Webb v. Zern, 422 Pa. 424, 427 (1966).

31

Pavlik v. Lane Ltd./Tobacco Exporters Inter., 135 F.3d 876, 881 (3d Cir. 1998) (“To recover
under §402A, a plaintiff must establish (1) that the product was defective; (2) that the defect
was a proximate cause of the plaintiff’s injuries; and (3) that the defect causing the injury
existed at the time the product left the seller’s hands.”); Phillips v. A-Best Products Co., 542
Pa. 124, 131 (1995) (“There are three different types of defective conditions that can give
rise to a strict liability claim: design defect, manufacturing defect, and failure-to-warn
defect. . . . A product is defective due to a failure-to-warn where the product was distributed
without sufficient warnings to notify the ultimate user of the dangers inherent in the
product.”)

32

See, e.g., Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 368 (1977) (extending the
coverage of § 402A to “lessors in the business of leasing products to the public”).

33

See, e.g., Nath v. National Equipment Leasing Corp., 497 Pa. 126, 129 (1981) (refusing to
extend the coverage of § 402A to “finance lessors engaged in the business of finance
leasing”).

34

522 Pa. 367 (1989).

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may endanger the safety of their persons and property, and the forced reliance
upon that undertaking on the part of those who purchase such goods” 35—and then
indicated that it would not impose strict liability on a defendant unless that policy
was furthered. 36
The Court went on to note that the auction under consideration was a “means
of marketing,” while “[t]he fact of marketing was the act of the seller who chose
the products and exposed them for sale by means of that auction.” 37 Furthermore:
The auction company merely provided a market as the agent of the
seller. It had no role in the selection of the goods to be sold, in
relation to which its momentary control was merely fortuitous and not
undertaken specifically. Selection of the products bought was
accomplished by the bidders, on their own initiative and without
warranties by the auction company. . . . [T]he auctioneer is not
equipped to pass upon the quality of the myriad of products he is
called upon to auction and with which his contact is impromptu. Nor
does he have direct impact upon the manufacture of the products he
exposes to bids, such as would result from continuous relationships
with their producers and which would be expected to provide him
with influence over the latter in acting to make products safer.”38
The Pennsylvania Supreme Court has not ruled on whether an online sales
listing service like Amazon Marketplace qualifies as a “seller” under § 402A; it is

35

Id. at 371 (citing Restatement (Second) of Torts § 402A cmt. f.).

36

Id. at 372 (“When those purposes will not be served, persons who se implication in supplying
products is tangential to that undertaking will not be subject to strict liability for the harms
caused by defects in the products.”).

37

Id. at 373.

38

Id.

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this Court’s job, therefore, to predict how that Court would rule on the question.39
The prediction, however, seems an uncomplicated one in light of Musser. Like an
auctioneer, Amazon is merely a third-party vendor’s “means of marketing,” since
third-party vendors—not Amazon—“cho[o]se the products and expose[] them for
sale by means of” the Marketplace. Because of the enormous number of thirdparty vendors (and, presumably, the correspondingly enormous number of goods
sold by those vendors) Amazon is similarly “not equipped to pass upon the quality
of the myriad of products” available on its Marketplace. And because Amazon has
“no role in the selection of the goods to be sold,” it also cannot have any “direct
impact upon the manufacture of the products” sold by the third-party vendors.
The Amazon Marketplace serves as a sort of newspaper classified ad
section, connecting potential consumers with eager sellers in an efficient, modern,
streamlined manner. Because subjecting it to strict liability would not further the
purposes of § 402A, as revealed by Musser and other Pennsylvania cases, it cannot
be liable to the Oberdorfs under a strict products liability theory. Therefore,
summary judgment will be granted in favor of Amazon on Counts I and II of the
Oberdorfs’ Complaint.

39

Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 45-46 (2009) (“In the absence of a controlling
decision by the Pennsylvania Supreme Court, a federal court applying that state’s substantive
law must predict how Pennsylvania’s highest court would decide th[e] case.”).

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C.

Whether
the
Oberdorfs
Have
Abandoned
Misrepresentation and Breach of Warranty Claims

Their

In the Motion for Summary Judgment and accompanying brief, 40 Amazon
argues that the Oberdorfs’ breach of warranty claim (Count IV), misrepresentation
claim (Count V), and claim for punitive damages should all fail because of a lack
of evidence. The Oberdorfs do not address any of these arguments in their papers
in opposition.41

Therefore, this Court will presume that the Oberdorfs have

abandoned those claims, 42 and will grant summary judgment in Amazon’s favor on
them.
D.

Whether the Communications Decency Act Bars the Oberdorfs’
Negligence and Negligent Undertaking Claims

Section 230 of the Communications Decency Act (“CDA”) 43 states that
“[n]o provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
40

ECF Nos. 29 and 36.

41

ECF No. 43. The closest the Oberdorfs come to addressing Amazon’s arguments on these
claims is in a single paragraph of their Response to Amazon’s Statement of Undisputed
Material Facts, ECF No. 40. There, in response to Amazon’s assertion that Ms. Oberdorf
“admits she does not recall any misrepresentation made to her by Amazon, or anyone else,
regarding the collar,” ECF No. 30 ¶ 18, the Oberdorfs simply assert—without offering any
factual or legal support or analysis—that “any seller such as Amazon impliedly represents
that the products they are putting into the stream of commerce are safe for their intended
use,” ECF No. 40 ¶ 18.

42

Bowser v. Bogdanovic, 2010 WL 1462548 (M.D. Pa. 2010) (“[W]hen the moving party
argues that summary judgment should be granted in its favor regarding a certain claim, the
non-movant abandons that claim by failing to address it in his response to the motion for
summary judgment.”) (citing Seals v. City of Lancaster, 553 F.Supp.2d 427 at 432-33 (E.D.
Pa. 2008)).

43

47 U.S.C. § 230.

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provider.”44 Amazon argues that the Oberdorfs’ claims attempt to treat Amazon
“as the publisher or speaker” of information provided by The Furry Group—i.e.,
“as the publisher or speaker” of the product information provided to Amazon by
that third-party vendor—and are therefore barred by § 230.
Courts have interpreted § 230 expansively, noting that the immunity
provided by that section “does not depend on the form of the asserted cause of
action[, but] rather . . . on whether the cause of action necessarily requires that the
defendant be treated as the publisher or speaker of content provided by another.”45
In Jane Doe No. 1 v. Backpage.com LLC, for example, three victims of sex
trafficking sued an online classified ad website, alleging that they were trafficked
through ads listed on the website by third parties.46 The plaintiffs argued that the
website was liable for their injuries because it deliberately created a forum to
facilitate such ads.47 Rejecting this argument, the United States Court of Appeals
for the First Circuit determined that the plaintiffs were attempting to hold the
website liable “as the publisher or speaker” of third-party content (the sex
trafficking ads), and held that the claims were therefore barred by § 230.48

44

47 U.S.C. § 230(c)(1).

45

Jane Doe No. 1 v. Backpage.com LLC, 817 F.3d 12, 19 (1st Cir. 2016).

46

Id. at 16-17.

47

Id.

48

Id. at 22.

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Since the Oberdorfs’ claims for strict products liability, misrepresentation,
and breach of warranty have all been disposed of supra, this Court need only
consider Amazon’s CDA argument with respect to the Oberdorfs’ negligence and
negligent undertaking claims. 49

Although the Complaint frames those claims

broadly, 50 it is clear from the Oberdorfs’ papers that they are, in fact, attempting to
hold Amazon liable for its role in publishing an advertisement for The Furry
Group’s product.51

In other words, the Oberdorfs are attempting to “treat[

Amazon] as the publisher or speaker of . . . information provided by” The Furry
Group. Therefore, these claims are barred by § 230 of the CDA, and summary
judgment will be granted in favor of Amazon on both Counts III of the Oberdorfs’
Complaint.52

49

The loss of consortium claim is discussed infra.

50

The Complaint’s first Count III alleges that Amazon was negligent in “distributing,
inspecting, marketing, selling, and testing” of the leash. ECF No. 1 ¶ 47. The Complaint’s
second Count III alleges that Amazon was negligent by, inter alia, “providing a product with
a dangerous condition . . . [f]ailing to conduct a proper hazard[] analysis . . . fail[ing] to
follow the guidelines of the safety hierarchy . . . [and] failing to provide the products with . . .
warnings that would have made it safer.” Id. ¶ 54.

51

For example, the Oberdorfs argue in their Opposition to Amazon’s Motion for Summary
Judgment that “Amazon played a direct role in the tortious conduct through its involvement
in the actual sale and distribution of the defective product. Specifically, Amazon constructed
the solicitation or advertisement that Mrs. Oberdorf saw and based her decision to purchase
the collar on[,] . . . collected the funds from Mrs. Oberdorf, retained its fee, and forwarded
the remaining funds to the Furry Gang.” ECF No. 43 at 16.

52

Had this Court not already decided that summary judgment should be granted in favor of
Amazon on the Oberdorfs’ strict products liability claims, it would hold that § 230 of CDA
bars those claims as well, since those claims attempt to hold Amazon liable purely because of
its role in marketing the leash—i.e., because of its role “as the publisher or speaker” of the
product information provided to Amazon by The Furry Gang.

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E.

Whether There is a Viable Underlying Claim to Support a Claim
of Loss of Consortium

Under Pennsylvania law, “[a]ny action for loss of consortium is derivative,
depending for its viability upon the substantive merit of the injured party’s
claims.” 53 Because this Court will enter summary judgment in favor of Amazon
on all of the Oberdorfs’ other claims, it will correspondingly enter summary
judgment in favor on Amazon on the Oberdorfs’ loss of consortium claim, Count
VI of their Complaint.
III.

CONCLUSION
Although Mrs. Oberdorf’s accident and subsequent injury are catastrophic,

and have resulted in life-long consequences, this Court has the power only to
interpret and apply the law, and not to create new bases for liability. Therefore, for
the reasons discussed above, Amazon’s Motion for Summary Judgment is granted.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

53

Schroeder v. Ear, Nose, and Throat Associates of Lehigh Valley, Inc., 383 Pa.Super. 440, 444
(1989).

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