If He Ain't a "Seller," He Ain't Liable in Product Liability
A federal court recently issued a decision holding that a publisher is not a "seller" and thus is not liable for product liability claims brought by the purchaser of a product advertised on the publisher's website. See Inman v. Technicolor USA, Inc., 2011 WL 5829024 (W.D. Pa. Nov. 18, 2011). This decision reminds us of the all-important duty determination in product liability and warranty cases: the manufacturer and seller of a product may owe duties to the product purchaser, but not others who are not in the chain of distribution of the product. This apt reminder -- coming in a case about product sales on eBay -- is particularly useful because in other contexts, plaintiffs seeking to avoid federal diversity jurisdiction are attempting to fraudulently join companies that publish information about products as defendants in product liability cases. But, as Inman holds, publishers are not liable in product liability or warranty because they are not sellers of the allegedly defective product and thus owe no duty to the plaintiff.
In Inman, the plaintiff bought vacuum tubes from various sellers on the on-line auction site eBay over the course of 8 years. These tubes allegedly contained mercury, and plaintiff claimed personal injury from using them.
Plaintiff sued various sellers and eBay in strict liability, negligence, and breach of express and implied warranties.
eBay filed a motion to dismiss. Applying Twiqbal, the court proceeded through a three-part analysis: first, laying out the elements of the claim, then identifying the bare allegations not entitled to a presumption of truth, and then determining whether the well-pleaded facts meet the elements of the causes of action. 2011 WL 5829024 at *3.
The court reviewed Pennsylvania law, noting that there can be no strict liability for one who is not a "seller" of a product. The status of "seller" "depends on the relationship between the defendant, the defective product, and the chain of distribution." The court concluded that plaintiff had failed to plead that eBay was anything approaching a seller:
[Plaintiff] has not alleged that eBay, at any time, had anything more than a fleeting connection to the allegedly defective products. He has not alleged that eBay ever had physical possession of the products, that they were moved or stored in a facility owned by eBay, or any other facts to suggest that holding eBay responsible would incentivize safety, that eBay is the only member of the marketing chain available, or that eBay is in a better position than [plaintiff] to prevent the circulation of such defective vacuum tubes.
Id. at *6.
The court assumed, for the sake of argument, that the complaint pled a valid negligence claim. It then analyzed the federal Communications Decency Act, which provides that : "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. sec. 230(c)(1). The court determined that the immunity provided by this section applied to eBay, which simply published on the web a site where buyers and sellers could meet to make deals. In doing so, it relied on precedents holding that an auctioneer is not subject to liability under the CDA. (Notably, there were similar cases in strict liability holding that auctioneers are not "sellers" of a product for the purposes of strict liability under Section 402A of the Restatement (Second) of Torts.)
As a result of its conclusions, the court dismissed the complaint, giving plaintiff an opportunity to replead.
Inman is not a groundbreaking opinion. But it's simple application of the principle that in product liability, duties only flow from one's status as a seller makes Inman potentially useful in a variety of contexts.
