The “Marketplace” Myth: Addressing Amazon’s Defense to Product Liability Claims

Many courts continue to analyze law as if we have not evolved from the early days of the internet, when Facebook was a “social networking” site, AOL made messages “instant,” and eBay let everyone auction random items. The internet connected people. Because it did not touch them, it could not harm them. However, with storefronts closing, brick-and-mortar retail chains declaring bankruptcy, and “Uber lots” popping up at airports, the internet “cloud” has touched down all over the country, and online businesses are now harming people just as human actors and brickand-mortar stores always have. While generating thousands of new ride hail drivers and marketing itself as a transportation company, Uber disclaims responsibility for driver negligence, claiming it merely connects drivers with “independent contractor” riders. Amazon dominates the retail industry to the point of antitrust charges yet disclaims responsibility for products sold on its site by arguing it is merely a “marketplace,” not a product seller or distributor that can be liable under products liability law. Although Amazon has won battles to avoid products liability, it is losing the war. Economic trends, government regulators, and legal analysis are shifting in favor of increased responsibility for Amazon’s increasing—and enormous—role in retail. This Article deconstructs Amazon’s marketplace argument and applies settled law in favor of the retail giant’s liability. First, each consumer “transaction as a whole” likely supports Amazon’s liability as a product distributor, if not as a seller. Second, public policy—at the root of products liability law—highlights Amazon’s influence in pushing for safer products. Third, Amazon’s broad public assurances of product safety exceed the role of a marketplace fostering transactions. As with other internet companies like Uber, the right to control the consumer experience is the most pervasive common thread in Amazon’s liability to the consumer—a legal principle far older than the internet.