Amazon Escapes Liability in Texas

By Casey Gerry July 06, 2021

by Jeremy Robinson

On June 25, 2021, in, Inc. v. McMillan, No. 20-0979, 2021 WL 2605885  (Tex. June 25, 2021), the Texas Supreme Court held that under Texas law, Amazon couldn’t be held liable as the “seller” of a defective product. The Texas Supreme Court was addressing a question certified to it by the Fifth Circuit and reversed a district court decision denying Amazon summary judgment.

McMillan, which I have written about before, involved a defective remote control that badly injured a small child. As it has in nearly every product liability case, Amazon argued it couldn’t be held liable because it wasn’t the “seller” of the remote. The Texas Supreme Court agreed, and, armed with that decision, the Fifth Circuit then directed the district court to grant Amazon’s motion for summary judgment.

The Texas high court’s holding was based on the peculiarities of Texas’s product liability statutes, which are unnecessary to spell out here. What was notable, though, was the court’s refusal to discuss—or really even acknowledge—the public policy considerations that underlie online marketplace liability or the real-world consequences of its decision. The court began and ended with the definition of “seller” under Texas law.

What this means for the future of online marketplace liability in unclear. So far, two state supreme courts, those in Ohio and Texas, have given Amazon the win. But both decisions were based on product liability statutes particular to those jurisdictions. There are many other states where this question has yet to be decided, including states where product liability is still driven by common law developments.

For now, Bolger and Loomis remain the only published appellate opinions in the country holding Amazon—or any other online marketplace—strictly liable for product defects. Thus, once again California courts are at the forefront of the development of product liability law and the protection of consumers.

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