Tornata al primo giudice la questione californiana sulla pericolosità di Speedfilter di Snapchat, la risposta è positiva

Continuano le decisioni sulla pericolosità dell’applicazione  <Speedfilter> di Snapchat: v. ad es. mio post sulla decisione di appello californiana 04.05. 2021. che aveva negato il safe harbour trattandosi di causa di negligennce.

Tornata la causa al primo giudice, viene decisa con sentenza 31.03.2022,  n° CV 19-4504-MWF (KSx) , Carly Lemon c. Snap inc.

Per la corte c’è negligenza nel design dell’applicaizione perchè induce a correre troppo in auto:  soprattutto solleticando la psiche degli utenti laddove propone trofei/premi non meglio identificati che vengono manifestati solo dopo l’evemtuale vincita:

<<The FAC alleges that the design of the Snapchat app rewards users by awarding  trophies for using the Snapchat app in particular ways that are unknown to the users until they actually obtain such trophies. (FAC ¶ 27). The FAC also alleges that the Speed Filter allows users to record the speed at which they are traveling and display  that speed over a photo or video of themselves that they can share on social media. (Id. ¶ 25). Finally, the FAC alleges that Plaintiffs used the Speed Filter within minutes of  the accident. (Id. ¶ 70).
The Court is satisfied that these three allegations, accepted as true, are sufficient
to allege causation premised on the theory that the Speed Filter’s design encouraged . Plaintiffs to drive at dangerous speeds.

If Snapchat users are seeking to obtain an unknown trophy associated with using the Speed Filter, it is plausible that they would seek this trophy by increasing their speed — the only metric recorded by the Speed Filter.
Even if there were no reward system whatsoever, the basic design of the Speed
Filter itself appears to encourage reckless driving. There is realistically no purpose for the Speed Filter other than to encourage users to travel at high speeds and record themselves doing so. Defendant’s argument that users will use the Speed Filter “safely while walking, jogging, or riding a train, boat, or Ferris wheel” (Motion at 3) is highly  implausible – let’s say it’s the arguments not the allegations that run afoul of the  Twombly and Iqbal argument. It is common sense that adding a speed-sharing feature to a social media application used predominantly by minors and young adults would  encourage such users to record themselves while driving at high speed>>

Inoltre, <<with respect to the second point, the Court disagrees with the superior court’s
approach because it focused on whether the Speed Filter contained an express
incentive to speed and ignored the incentives inherent in the Speed Filter’s design.
The superior court apparently was persuaded that, without an express incentive to drive
recklessly, individuals would use the Speed Filter safely as a passenger on a ferry,
train, or airplane. In doing so, the Maynard court essentially treated Snap as a
publisher or speaker, rather than a product manufacturer — the exact approach that the
Ninth Circuit has warned against here. (Ninth Circuit Opinion at 10–12 (“the Parents’
amended complaint does not seek to hold Snap liable for its conduct as a publisher or
speaker”). Indeed, the Maynard court treated the plaintiffs’ claim as a negligent
advertising claim rather than a negligent design claim, relying explicitly on Ely v.
General Motors Corp., which held that an auto manufacturer was not liable for
encouraging reckless driving by advertising that a car could go up to 150 miles per
hour. 927 S.W. 2d 774, 782 (Tx.Ct.App. 1996).>>

Nè la pericolosità viene meno per la possibilità di molteplici diversi usi.

Inoltre è ravvisata la causalità tra il difetto progettuale e il fatto dannoso verificatosi: <<The causal connection between the Speed Filter and the speeding accident is strong given that the accident occurred while the Plaintiffs were using the Speed Filter for the exact purpose for which it appears to have been designed: to record the user traveling at excessive speeds>>

(notizia e link alla sentenza dal blog del prof. Eric Goldman)

la Corte Suprema della Georgia sulla vicenda “Speedfilter” di Snapchat

Prosegue la lite sulla pericolosità dell’applicazione Speed Filter di Snapchat, su cui v. già  mio post 19..05.2021.

Interviene la Corte Suprema della Geogia con sentenza 15.03.2022, S21G0555, MAYNARD et al. v. SNAPCHAT, per dire che Snapchat ha un dovere di progettare le applicazioni tenendo conto dei rischi prevedibili producibili a carico degli utenti e che in particolare lo aveva anche in relazione a qhllo poi concretatosi in danno nella vicenda de qua (aver favorito l’eccessiva velocità e la distrazione dell’utente che vuole farsi riprendere mentre guida).

Si tratta in pratica di una precisazione sulla diligenza che avrebbe dovuto essere tenuta dal produttore in fase progettuale.   La SC non si sofferma invece sugli altri elementi della fattispecie di responsabilità (aquiliana) : violazione, nesso di causa, danno.

<<Similarly, under our decisional law, when designing a product,
a manufacturer has a duty to exercise reasonable care in “selecting
from among alternative product designs” to “reduce[] the
[reasonably] foreseeable risks of harm presented by [a] product.
>>, p. 8.

<<A breach of a duty constitutes a proximate cause of an injury
only if the injury is the “probable” result of the breach, “according to
ordinary and usual experience,” as opposed to “merely [a] possible”
result of a breach, “according to occasional experienc
>>, p. 13

<As shown by the above discussion, considerations regarding
foreseeability are intertwined with questions of duty, breach, and
proximate causation in negligent-design cases. When determining
whether a manufacturer owes a decisional-law design duty with
respect to a particular risk of harm posed by a product, the question
is whether that particular risk was reasonably foreseeable.
>>, p. 15

<<only reasonably foreseeable risks of harm posed by a product trigger a manufacturer’s duty to use reasonable care in selecting from alternative designs under our decisional law. See Jones, 274 Ga. at 118. Applying that standard,
the Maynards adequately alleged at the motion-to-dismiss stage
that Snap owed Wentworth a design duty with respect to the
particular risk of harm at issue here – namely, injury to a driver
resulting from another person’s use of the Speed Filter while driving
at excess speed.
>>, p. 15-6.

Specificamente i Maynards (gli attori) avevano allegato <<that Snap could reasonably foresee that its product design created this risk of harm based on,
among other things, the fact that Snap knew that other drivers were
using the Speed Filter while speeding at 100 miles per hour or more
as part of “a game,” purposefully designed its products to encourage
such behavior, knew of at least one other instance in which a driver
who was using Snapchat while speeding caused a car crash, and
warned users not to use the product while driving. The Maynards
further alleged that, “[o]nce downloaded, Snapchat’s software
continues to download and install upgrades, updates, or other new

features” from Snap, meaning that the Maynards may be able to
introduce evidence showing that Snap continued developing its
product and released new versions of the software between the
initial launch of the Speed Filter and the date of Wentworth’s
accident, after obtaining real-world information about how the
Speed Filter was in fact being used. Given these allegations, we
cannot say as a matter of law at the motion-to-dismiss stage that the
Maynards could not introduce evidence that, when designing the
Speed Filter, Snap could reasonably foresee that the product’s
design created a risk of car accidents like the one at issue here,
triggering a duty for Snap to use reasonable care in designing the
product in light of that risk. See Collins v. Athens Orthopedic Clinic,
P.A., 307 Ga. 555, 560 (2) (a) (837 SE2d 310) (2019) (noting that a
motion to dismiss for failure to state a claim cannot be granted
unless “the plaintiff would not be entitled to relief under any state
of provable facts asserted in support of the allegations in the
complaint and could not possibly introduce evidence within the
framework of the complaint sufficient to warrant a grant of the relief

sought” (punctuation omitted)); see also Lemmon v. Snap, Inc., Case
No. CV 19-4504-MWF (KSX), 2019 WL 7882079, at *7 (C.D. Cal. Oct.
30, 2019) (holding that plaintiffs asserting a car-crash-related
wrongful-death claim against Snap “sufficiently alleged a duty”
owed by Snap because the plaintiffs’ allegation that “[car] accidents
ha[d] occurred as a result of users attempting to capture [a 100
m.p.h.] Snap” as part of a “game” prevented the court from
“determin[ing] that the harm from the Speed Filter was not
foreseeable as a matter of law”). Cf. Sturbridge Partners, Ltd. v.
Walker, 267 Ga. 785, 787 (482 SE2d 339) (1997) (“[E]vidence of the
prior burglaries was sufficient to give rise to a triable issue as to
whether or not Sturbridge had the duty to exercise ordinary care to
safeguard its tenants against the foreseeable risks p osed by the
prior burglaries.”)
>>, p. 17-18.

E poi: << a manufacturer’s design duty for purposes of a
negligent-design claim extends to all reasonably foreseeable risks
posed by a produc
>>, p. 20.

Naturalmente il vero problema è il caso di un uso totalmente improprio: deve risponderne il produttore? cioè deve tenerne conto quando progetta il prodotto?

<<Contrary to the opinion of the Court of Appeals majority,
our decisional law does not recognize a blanket exception to a
manufacturer’s design duty in all cases of intentional or tortious
third-party product misuse. Nevertheless, we emphasize that
intentional or tortious third-party misuse may be an important
consideration in determining whether a manufacturer owes a
decisional-law design duty in a particular case, whether the
manufacturer breached that duty, and whether the manufacturer’s
breach was a proximate cause of the resulting injury. 

As in other areas of the law where a defendant’s duty extends only to reasonably
foreseeable risks, the likelihood and nature of a third party’s use of
a product may be relevant in determining whether the particular
risk of harm from a product was reasonably foreseeable, and thus
whether a manufacturer owed a decisional-law design duty to avoid
that risk in a particular ca se. Cf. Doe v. Prudential-Bache/A.G.
Spanos Realty Partners, L.P., 268 Ga. 604, 605-606 (492 SE2d 865)
(1997) (concluding that, although “ questions of foreseeability”
underlying a landlord’s “duty to protect tenants from the
[foreseeable] criminal attacks of third parties” are “generally for a
jury,” the evidence of foreseeability on summary judgment could not
support a finding that the landlord owed a duty to the victim of a
criminal attack). Third-party product use may also be relevant in

determining whether a manufacturer breached its design duty if, for
example, danger from such use was so unlikely as to render
reasonable a manufacturer’s decision not to address it. See Banks,
264 Ga. at 736 n.6 (1) (noting that a relevant factor in the risk-utility
analysis is the likelihood of a danger). Finally, the likelihood and
nature of a third party’s tortious product use may be relevant in
determining whether a manufacturer’s breach can be considered a
proximate cause of the injury or whether, under the doctrine of
intervening causes, the third party’s conduct should be deemed the
sole proximate cause of the injury. See Johnson, 311 Ga. at 593
>>, pp. 29-31.

Si v. da noi la corrispondente disciplina fornita dall’art. 117 cod. cons., secondo cui

<<Un prodotto e' difettoso quando non offre la sicurezza che ci si
puo'  legittimamente  attendere tenuto conto di tutte le circostanze,
tra cui:
    a) il  modo in cui il prodotto e' stato messo in circolazione, la
sua  presentazione, le sue caratteristiche palesi, le istruzioni e le
avvertenze fornite;
    b) l'uso   al  quale  il  prodotto  puo'  essere  ragionevolmente
destinato  e  i  comportamenti  che, in relazione ad esso, si possono
ragionevolmente prevedere;
    c) il tempo in cui il prodotto e' stato messo in circolazione.
  2.  Un  prodotto  non puo' essere considerato difettoso per il solo
fatto  che un prodotto piu' perfezionato sia stato in qualunque tempo
messo in commercio.
  3.  Un  prodotto  e'  difettoso  se  non offre la sicurezza offerta
normalmente dagli altri esemplari della medesima serie.

Si noti spt. la lettera b), naturalmente.

(notizia e link alla sentenza dal blog del prof. Eric Goldman)

Obblighi di avvertenza per prodotti venduti sul suo marketplace anche per lo stesso Amazon (che nemmeno può invocare il safe harbour ex 230 CDA)

Secondo una legge californiana del 1986 (c.d. <<Proposition 65>>), No person in thecourse of doing business shall knowingly and intentionally expose any
individual to a chemical known to the state to cause cancer or reproductive
toxicity without first giving clear and reasonable warning to such individual,
except as provided in Section 25249.10.”.

Il punto è : Amazon rientra nel concetto di <person in the couirse of doing business> gravato dal voere informativo cit.? Si, secondo la corte di appello della California, 1st app. district, Lee c. Amazon, A158275 in un caso concernente crema richiarante la pelle  mna contenente mercurio in eccesso.

Amazon siostiene naturalmente di non car parte della catena distrivbutiva, ma la difesa è respinta: <<The trial court was clearly correct to reject Amazon’s claim to beoutside the chain of distribution. Proposition 65 imposes the duty to provide
 warnings on any “person in the course of doing business,” which
unquestionably includes Amazon’s activities here. As the trial court
explained, “there is no language in section 25249.l l(f) [‘definitions’ for
Proposition 65] or the new regulations expressly limiting the duty to provide
a Proposition 65 warning only to a ‘manufacturer, producer, packager,
importer, supplier, or distributor of a product,’ or a ‘retail seller’ (under more
limited circumstances described in C.C.R. § 25600.2(e)), or limiting the broad language in the operative statute imposing the warning requirement on any
‘person in the course of doing business’ who ‘knowingly and intentionally
expose[s] any individual’ to a listed chemical. (Health & Saf. Code § 25249.6.)
The phrase ‘person in the course of doing business’ is broadly worded and not
limited to parties in the chain of distribution of a product or whose status is
defined in the regulations. (See Health & Saf. Code, § 25249.11(b).)” Amazon
manages and oversees all aspects of third-party sales on its Web site,
including accepting payment and providing refunds to customers on sellers’
behalf, providing the only channel for communication between customers and
sellers, earning fees from sellers for each completed sale and, for sellers
utilizing the FBA program, storing the products and arranging for their
delivery to customers. There can be no question Amazon was, in the words of
one court, “pivotal in bringing the product here to the consumer.” (Bolger v. (2020) 53 Cal.App.5th 431, 438 (Bolger).>>, pp. 36-37.

Inolktre Amazon noin ha titolo per invoare l’esimente del § 230 CDA per gli editori (in senso opposto il giudioce di priomo grado).

La questione non è semplice.

L’attore Lee afferma che <<Amazon violated Proposition 65 exposing consumers to mercury without warnings through its own conduct. The claims do not
attempt to hold Amazon responsible for thirdparty sellers’ content (except in
the sense that Amazon would have been able to disclaim responsibility for
providing warnings if the sellers had provided them). As we have discussed,
the claims do not require Amazon to modify or remove thirdparty content
but rather to provide a warning where Amazon’s own conduct makes it
subject to Health and Safety Code section 25249.6>>, p. 76

E poi: << Contrary to Amazon’s characterization, enforcing its obligations under
Proposition 65 does not require it to “monitor, review, and revise” product
listings. As both Lee and the Attorney General point out, the “knowingly and
intentionally” requirement in Health and Safety Code section 25249.6 means
Amazon is required to provide a warning where it has knowledge a product
contains a listed chemical—for example, from public health alerts or direct
notice. We recognize that any responsibility to provide warnings Amazon
might have under section 25249.6 would not result in liability if the third-
party seller of a skin-lightening product its If a skin-lightening cream is sold in a brick-and-mortar drug store thatwas aware the product contained mercury, there is no question that retailseller would have some obligation to provide Proposition 65 warnings—depending, of course, on whether entities further up the distribution chainhad provided warnings for the products and, if not, could be held to account.Nothing in the text or purposes of the CDA suggests it should be interpretedto insulate Amazon from responsibilities under Proposition 65 that wouldapply to a brick-and-mortar purveyor of the same product.Not only would such an interpretation give Amazon a competitiveadvantage unintended by Congress in enacting the CDA, but it would beinimical to the purposes of Proposition 65. Amazon makes it possible forsellers who might not be able to place their products in traditional retailstores to reach a vast audience of potential customers. (E.g., Bolger, supra,53 Cal.App.5th at p. 453 [“The Amazon website . . . enables manufacturersand sellers who have little presence in the United States to sell products tocustomers here”].) The evidence in this case indicates that mercury-containing skin-lightening products are overwhelmingly likely to have beenmanufactured outside the United States—unsurprisingly, as FDAregulations prohibit use of mercury as a skin-lightening agent in cosmetics.(21 C.F.R. § 700.13.) This makes it all the more likely Amazon may be theonly business that can readily be compelled to provide a Proposition 65warning for these products. (See 2016 FSOR, supra, p. 55 [discussingimpracticality of enforcing warning requirement against foreign entitywithout agent for service of process in United States]; Bolger, supra,53 Cal.App.5th at p. 453 [noting as first factor supporting application of strictliability doctrine to Amazon that it “may be the only member of thedistribution chain reasonably available to an injured plaintiff who purchasesa product on its website”].) Amazon is thus making available to consumers,and profiting from sales of, products that clearly require Proposition 65warnings, yet are likely to have been manufactured and distributed byentities beyond the reach of reasonable enforcement efforts. InsulatingAmazon from liability for its own Proposition 65 obligations in thesecircumstances would be anomalousto review the product’s packaging and/or listing on the Web site to determine whether a warning was provided by the third-party seller. These facts do not mean Lee’s claims necessarily treats Amazon as a speaker or publisher of information provided by the third-party sellers. If Amazon has actual or constructive knowledge that a product contains mercury, it might choose to review the product listing to determinewhether the third-party seller had provided a Proposition 65 warning before providing the warning itself or removing the listing. But nothing inherently requires Amazon to do so. It could choose, instead, to act on its knowledge by providing the warning regardless, pursuant to its own obligations under Proposition 65>>

Tale legge << “ ‘is a remedial law, designed to protect
the public’ ” which must be construed “ ‘broadly to accomplish that protective
purpose.’ ” (Center for Self-Improvement & Community Development v.
Lennar Corp., supra, 173 Cal.App.4th at pp. 1550–1551, quoting People ex rel.
Lungren v. Superior Court, supra, 14 Cal.4th at p. 314.) Moreover, states’
“police powers to protect the health and safety of their citizens . . . are
‘primarily, and historically, . . . matter[s] of local concern.’ ” (Medtronic, Inc.79
v. Lohr (1996) 518 U.S. 470, 485.) The United States Supreme Court has
explained that “[w]hen addressing questions of express or implied pre-
emption, we begin our analysis ‘with the assumption that the historic police
powers of the States [are] not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress.’ [Citation].” (Altria Group,
Inc. v. Good (2008) 555 U.S. 70, 77.) The “strong presumption against
displacement of state law . . . applies not only to the existence, but also to the
extent, of federal preemption. [Citation.] Because of it, ‘courts should
narrowly interpret the scope of Congress’s “intended invalidation of state
law” whenever possible.’ [Citation].” (Brown v. Mortensen (2011) 51 Cal.4th
1052, 1064.)
As the Ninth Circuit has explained, Congress intended “to preserve the
free-flowing nature of Internet speech and commerce without unduly
prejudicing the enforcement of other important state and federal laws. When
Congress passed section 230 it didn’t intend to prevent the enforcement of all
laws online; rather, it sought to encourage interactive computer services that
provide users neutral tools to post content online to police that content
without fear that through their ‘good samaritan . . . screening of offensive
material,’ [citation], they would become liable for every single message posted
by third parties on their website.” (, supra, 521 F.3d at
p. 1175, quoting § 230(c).)
The text of section 230(e)(3) is clear that state laws inconsistent with
section 230 are preempted while those consistent with section 230 are not
preempted. Proposition 65’s warning requirement is an exercise of state
authority to protect the public that imposes obligations on any individual who
exposes another to a listed chemical. Proposition 65 is not inconsistent with
the CDA because imposing liability on Amazon for failing to comply with its own, independent obligations under Proposition 65, does not require treating Amazon as the publisher or speaker of third-party sellers’ content.

Accordingly, if Lee can establish all the elements of a violation of Proposition
65, section 230 does not immunize Amazon from liability>>, pp. 79-80

(notizia della sentenza e link dal blog del prof. Eric Goldman)

Ancora sul (pericoloso) “speed filter” di Snap e il safe harbour ex § 230 CDA

Altra lite sulle conseguenze mortali dell’uso del software <speed filter> di Snap Inc., che permette di eseguire e condividere filmati dal veicolo con riproduzione della velocità oraria raggiunta.

I genitori di ragazzi morti in incidente automobilistico, causato anche dall’incoraggiamento di Snap a correre forte, citano Snap INc. (poi: S.) per progettazione difettosa del prodotto (responsabilità da prodotto difettoso)

Decide la corte di appello californiana del 9° cicuito, 4 maggio 2021, Lemon ed altri c. Snap Inc. No. 20-55295,  D.C. No. 2:19-cv-04504-MWF-KS.

In primo grado era stata accolta l’eccezione di safe harbour ex § 230 CDA; in  appello viene respinta, per cui viene riformata la decisione di primo grado.

In breve, per la Corte la domanda dei genitori dei ragazzi era basata su design negligente del prodotto e dunque nulla aveva a che fare con il ruolo di publisher/speaker chiesto dal § 230 CDA.

Va anche tenuto conto che <<many of Snapchat’s users suspect, if not actually “believe,” that Snapchat will reward them for “recording a 100-MPH or faster [s]nap” using the Speed Filter. According to plaintiffs, “[t]his is a game for Snap and many of its users” with the goal being to reach 100 MPH, take a photo or video with the Speed Filter, “and then share the 100-MPH-Snap on Snapchat.”>>, p. 7.

Dunque <<Snapchat allegedly knew or should have known, before May 28, 2017, that its users believed that such a reward system existed and that the Speed Filter was therefore incentivizing young drivers to drive at dangerous speeds. Indeed, the Parents allege that there had been: a series of news articles about this phenomenon; an online petition that “called on Snapchat to address its role in encouraging dangerous speeding”; at least three accidents linked to Snapchat users’ pursuit of high-speed snaps; and at least one other lawsuit against Snap based on these practices. While Snapchat warned its users against using the Speed Filter while driving, these warnings allegedly proved ineffective. And, despite all this, “Snap did not remove or restrict access to Snapchat while traveling at dangerous speeds or otherwise properly address the danger it created.”>>, ivi.

<<Here, the Parents seek to hold Snap liable for its allegedly “unreasonable and negligent” design decisions regarding Snapchat. They allege that Snap created: (1) Snapchat; (2) Snapchat’s Speed Filter; and (3) an incentive system within Snapchat that encouraged its users to pursue certain unknown achievements and rewards. The Speed Filter and the incentive system then supposedly worked in tandem to entice young Snapchat users to drive at speeds exceeding 100 MPH.
The Parents thus allege a cause of action for negligent design—a common products liability tort>>, p. 11.

Non si tratta quindi di causa petendi basata sull’attività di publisher/speaker: <<The duty underlying such a claim differs markedly from the duties of publishers as defined in the CDA. Manufacturers have a specific duty to refrain from designing a product that poses an unreasonable risk of injury or harm to consumers. See Dan B. Dobbs et al., Dobbs’ Law of Torts § 478 (2d ed., June 2020 Update). Meanwhile, entities acting solely as publishers—i.e., those that “review[] material submitted for publication, perhaps edit[] it for style or technical fluency, and then decide[] whether to publish it,” Barnes, 570 F.3d at 1102—generally have no similar duty. See Dobbs’ Law of Torts § 478.
It is thus apparent that the Parents’ amended complaint does not seek to hold Snap liable for its conduct as a publisher or speaker. Their negligent design lawsuit treats Snap as a products manufacturer, accusing it of negligently designing a product (Snapchat) with a defect (the interplay between Snapchat’s reward system and the Speed Filter). Thus, the duty that Snap allegedly violated “springs from” its distinct capacity as a product designer. Barnes, 570 F.3d at 1107. This is further evidenced by the fact that Snap could have satisfied its “alleged obligation”—to take reasonable measures to design a product more useful than it was foreseeably dangerous—without altering the content that Snapchat’s users generate. Internet Brands, 824 F.3d at 851. Snap’s alleged duty in this case thus “has nothing to do with” its editing, monitoring, or removing of the content that its users generate through Snapchat. Id. at 852>>, 12-13.

Tuttavia un hosting di materiali di terzi c’era: quello dei video (snaps) dei tre sfortunati ragazzi (i quali sono terzi rispetto a S.).

Ma ciò non toglie che la causa petendi era di prodotto difettoso: <<Notably, the Parents do not fault Snap in the least for publishing Landen’s snap. Indeed, their amended complaint fully disclaims such a reading of their claim: “The danger is not the Snap [message using the Speed Filter] itself. Obviously, no one is harmed by the post. Rather, the danger is the speeding.” AC ¶ 14. While we need not accept conclusory allegations contained in a complaint, we must nonetheless read the complaint in the light most favorable to the Parents. See Dyroff, 934 F.3d at 1096. And this statement reinforces our own reading of the Parents’ negligent design claim as standing independently of the content that Snapchat’s users create with the Speed Filter.
To sum up, even if Snap is acting as a publisher in releasing Snapchat and its various features to the public, the Parents’ claim still rests on nothing more than Snap’s “own acts.” Roommates, 521 F.3d 1165. The Parents’ claim thus is not predicated on “information provided by another information content provider.” Barnes, 570 F.3d at 1101>>, p. 15.

La decisione pare corretta.

Notizia e link alla sentenza dal blog di Eric Goldman (critico invece sulla sentenza)

Responsabilità di Amazon da prodotto difettoso anche se venduto (suo tramite) da venditore terzo?

la corte di appello della california affronta la ormai nota questione del se Amazon (A.) sia responsabile per i danni provocati da prodotti venduti da terzi tramite il suo marketplace: C. of Appeal of California, Loomis c. LL.CC., 26.04.0221 , n° B297995.

Si era trattato di uno hoover che, messo in carica, aveva preso fuoco e rischiato di incendiare l’abitazione,p. 2-3.

A p. 3 segg. sono indicati i tipi di vendita tramite A. , tra cui il <Fullfilment by Amazon – FBA> (con stoccaggio), ma non usato nel caso de quo.

A p. 5 ss i dati di vendita di hoover via A. (in totale più di 380.000 nel 2015). Proprio nel periodo di acquisto de quo , A. aveva rilevato rischi di difetto sugli hoover e aveva tentato di richiamarli.

A p. 10 ss la teria della strict liability che coinvolge qualunque impresa della catena di produzione e marketing.: <<Under the marketing enterprise theory or stream of commerce approach, the plaintiff must show: “(1) the defendant received a direct financial benefit from its activities and from the sale of the product; (2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.” (Id. at p.776; Kasel v. Remington Arms Co. (1972) 24 Cal.App.3d 711 (Kasel).)>>, p. 12

A p. 12  è anche esamianto il precedente Bolger v. Amazon, pure sfavorevole ad A.

Il succo è al § D.1, p. 16 ss: <<Contrary to Amazon’s assertion that it merely provided an online storefront for TurnUpUp and others to sell their wares, it is undisputed Amazon placed itself squarely between TurnUpUp, the seller, and Loomis, the buyer, in the transaction at issue. When Loomis wanted to buy a hoverboard for her son, she perused product listings on Amazon’s website. Amazon took Loomis’s order and processed her payment. It then transmitted the order to TurnUpUp, who packaged and shipped the product to Loomis.
When Loomis wondered whether the hoverboard would arrive in time for Christmas, she communicated her concerns through Amazon. TurnUpUp was not allowed to communicate with Loomis directly. If Loomis had wanted to return the hoverboard, the return would have been routed through Amazon.
Amazon remitted Loomis’s payment to TurnUpUp after deducting its fees, including a 15 percent referral fee based on the total sale price. These facts undermine Amazon’s characterization of its marketplace as an online mall providing online storefronts for sellers. Owners of malls typically do not serve as conduits for payment and communication in each transaction between a buyer and a seller. Moreover, they do not typically charge a per-item fee rather than a fixed amount to rent their storefronts. Instead, these actions – 1) interacting with the customer, 2) taking the order, 3) processing the order to the third party seller, 4) collecting the money, and 5) being paid a percentage of the sale – are consistent with a retailer or a distributor of consumer goods>>.

Non adattandosi bene l’e-commerce alla dottrina tradizinale,  la corte invoca la c.d. stream of commerce approach or market enterprise theory per la strict liability: <<“[U]nder the stream-of-commerce approach to strict liability no precise legal relationship to the member of the enterprise causing the defect to be manufactured or to the member most closely connected with the customer is required before the courts will impose strict liability. It is the defendant’s participatory connection, for his personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product (and not the defendant’s legal relationship (such as agency) with the manufacturer or other entities involved in the manufacturing-marketing system) which calls for imposition of strict liability. [Citation.]” (Kasel , supra, 24 Cal.App.3d at p. 725.) Thus, a defendant may be strictly liable under the stream of commerce approach if: “(1) the defendant received a direct financial benefit from its activities and from the sale of the product; (2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and (3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.” (Bay Summit, supra, 51 Cal.App.4th at p. 778.)>>

Si notino i tre requisiti, di seguito (p. 18 ss) analizzati e  ravvisati nel caso de quo.

Nauturalmente anche la difesa per cui  a. è un mero service provider, a  questo punto, non vale, p. 20 ss

Da ultimo sono interessanti le ragioni di policy enunciate : <<As noted earlier in this opinion, the relevant public policy considerations are: (1) whether Amazon may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end, (2) whether Amazon may be the only member in the distribution chain reasonably available to the injured plaintiff, and (3) whether Amazon is in a position to adjust the costs of compensating the injured plaintiff amongst various members in the distribution chain. (Vandermark, supra, 61 Cal.2d at pp. 262-263.)>>. Vengono analizzate partitatmente e ritenuti applicabili al caso sub iudice, tali da portare al giudizio sfavorevole ad A., p. 24 ss

Esito non diverso per l’azione di negligence generale, p.28/9

E’ infine assai interessante la lunga concurring opinion del giudice Wiley, allegata. Oltre a trovare ammissione (confessione) di A. secondo cui può influire e controllare i prodotti sicchè ne ha strict liability, p. 4, vale la pena di leggere le considerazioni sulla cost-benefit analysis nella tort law: sia in generale 4 ss., che in alcuni precedenti giudiziari, 8 ss .

Egli conclude così: <<In a nutshell, plaintiff Wilkinson proposed requiring secondhand dealers to take expensive safety measures: dismantling, inspecting, repairing, and granting a mandatory warranty. The court, quite reasonably, was not convinced these steps were cost-effective in light of the existing strict liability duties on the original manufacturer and its original distribution network. Wilkinson’s proposed safety measures were too expensive and ineffective to be socially desirable. So Hicks owed no strict liability duty to Wilkinson. (Accord, Brejcha v. Wilson Machinery, Inc. (1984) 160 Cal.App.3d 630; Tauber–Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268.). In contrast, the measures Amazon can take to minimize the cost of accidents are cost-effective and socially efficient ….. Amazon’s citations thus offer it no support. All involve defendants who, unlike Amazon, had no cost-effective way to reduce the costs of accidents. This case is easy. Amazon is well situated to take cost-effective measures to minimize the social costs of accidents. Strict liability will prompt this beneficial conduct. Loomis wins this appeal. The case will return to the trial court for resolution of issues the appeal has not addressed.>>, p. 20 e 22