“Online stores try to avoid liability for unsafe products.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today we’ll look at the topic of holding online stores liable for selling products that are banned, unsafe, and/or mislabeled that cause injury or death to consumers.

Unfortunately, there is a growing number of people who are being harmed by products purchased online that are, unbeknownst to the customer, banned, unsafe, and/or mislabeled on the website.

For example, a 2019 investigation by the Wall Street Journal revealed that thousands of items for sale on Amazon.com have been declared unsafe by federal agencies, are deceptively labeled, or are banned by federal regulators to even be on the market. Many online products are listed in the product description as being DOT-compliant, FDA approved, or UL certified, when in fact, they are not. Additionally, some items such as children’s toys, were purchased online and tested for toxicity, and showed that they contained dangerously high levels of lead.

Generally, when people buy goods at a brick-and-mortar store, the law places a responsibility on the store to only sell goods that are deemed safe for consumers. Say, for example, you purchase an item at a big box store and it turns out to be defective and injure you, the law typically allows you, the injured consumer, to hold not only the manufacturer of the item responsible for your injuries, but also the seller of that item—in other words, the big box store.

But what happens in the world of online shopping? Say you purchase a small kitchen appliance online that turns out to be defective and dangerous and injures you. Can you hold the online store responsible for selling you the item the same way you can hold a brick-and-mortar store responsible for selling a defective product? Well, the answer is a bit complicated, and the law appears to be slowly changing.

For example, was the item purchased directly from an online store’s website or was it actually purchased from a third party seller that is hosted on the online store’s website? Some online stores make it clear when a person is buying from a third party seller, but other times, it is anything but clear.

Many online stores, even those that originally started out as selling directly to consumers, have evolved into something more like a flea market where a large percentage of the products for sale are actually sold through third party sellers or vendors—many of whom can be anonymous. When online stores allow third party sellers to sell products on their website, it breaks the direct supply and distribution chain that typical brick-and-mortar stores have over their products. In other words, it breaks the direct chains of supply and distribution which the law has reasoned as an important basis for holding sellers responsible for selling defective and/or dangerous products.

It is important to point out that not all online stores are equal in how they allow third party sellers access to sell through their websites or in how they police third party sellers to only sell safe and genuine products. Some websites really vet their third party sellers, while others grant immediate access.

So why does this all matter? Well, if you or a loved one is injured or even killed by a defective or dangerous product that was purchased online, this may really impact your ability to hold an online retailer or seller liable for the damages. In an effort to avoid liability, many online retailers argue that they can’t be held liable for the defective or dangerous product that harmed someone because they were not the actual seller, but rather, just an online platform hosting third party sellers. Many times, the third party sellers are individuals or small businesses that have no insurance or way to pay for causing harm to customers.

However, some courts, such as the Third Circuit U.S. Court of Appeals, are finding that online retailers may still be held liable even if a defective or dangerous product is sold by a third-party seller because the online retailer has a responsibility to vet and control the third-party sellers it allows to use its website.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at www.DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.