This client alert provides an update regarding a recent federal court decision that could have implications for product liability lawsuits against e-cigarette distributors alleging negligent failure to warn.
The United States District Court for the Northern District of Georgia recently dismissed claims against Amazon.com, Inc. (“Amazon”) by a man who was burned and lost his home when a hoverboard caught fire. The court ruled that the plaintiff had not pleaded facts sufficient to show that Amazon had actual or constructive knowledge that the hoverboard sold to the plaintiff was dangerous at the time of sale.
The complaint alleged that in February 2016, the hoverboard’s lithium-ion battery started a fire at plaintiff’s house while it was not plugged in. Plaintiff was burned on his head, face, back and shoulders, and suffered smoke inhalation. His home was destroyed, and he lost personal property worth more than $50,000.
The suit claimed that Amazon was on notice that hoverboards sold through its website had been linked to at least nine fires started by their lithium-ion batteries between November 11, 2015, and January 3, 2016. Amazon filed a motion to dismiss, arguing, among other things, that five of the fires noted in the complaint occurred after plaintiff bought the hoverboard and that the other four occurred between one and 11 days prior to plaintiff’s purchase.
The question addressed by the court was whether plaintiff’s allegations regarding the four pre-sale incidents could plausibly support a finding that Amazon knew or should have known that the product sold to plaintiff was dangerous. The court’s order granting Amazon’s motion to dismiss noted that the complaint did not describe “how, when or where Amazon received notice” of the four pre-sale incidents. In addition, the court found that plaintiff failed to plead particular facts about any of these incidents beyond asserting that they were cases in which a hoverboard started a fire.
The court’s order stated that in order for prior incidents to give rise to a legal duty to take corrective measures, the prior incidents must be “sufficiently similar” to the facts involved in the present action. In this case, the court found that plaintiff had provided no facts from which to glean whether the prior incidents were sufficiently similar to the one that gave rise to the suit. In particular, the court stated that “Plaintiff omits particularly salient facts like the brand or brands of hoverboards involved in these incidents and the circumstances that gave rise to the fires. These bare bones allegations cannot support a finding that Defendant Amazon knew or should have known about the safety risk posed by the hoverboard purchased by the Plaintiff.”
Based on the court’s ruling in this case, e-cigarette distributors that are sued for negligent failure to warn—many of which cases arise from the combustion of lithium-ion batteries—may want to consider filing a motion to dismiss if the complaint does not allege prior incidents involving similar facts and the same brand of e-cigarette device. For instance, if the complaint does not allege the specific circumstances of the prior incident, e-cigarette distributors can argue that the complaint does not sufficiently state a claim for negligent failure to warn. Similarly, e-cigarette distributors can seek to distinguish the factual circumstances of the prior incident from the incident at issue in the complaint to demonstrate that the allegations are insufficient to support a finding that the distributor knew or should have known about the safety risk posed by the product.
The court’s ruling in this case also indicates that allegations regarding the product’s brand are important. In particular, e-cigarette distributors may have grounds for a motion to dismiss if the complaint does not allege that the same brand of device caused a prior fire. Bare bones allegations that the distributor previously sold e-cigarette devices that started a fire probably will not be enough for a plaintiff to survive the distributor’s motion to dismiss.
For more information about how this may affect your business and/or current or pending litigation, please contact one of the attorneys in the E-Cigarette/Vape Team.