STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 CA 1089
CASSANDRA SKAGGS
VERSUS
AMAZON. COM, INC., and AMAZON FULFILLMENT SERVICES, INC., and AMAZON WEB SERVICES, INC., and AMAZON SERVICES, LLC, and TALENTED & GIFTED and HEWLETT- PACKARD COMPANY, and DELL, INC. a/ k/ a DELL COMPUTER CORPORATION a/ k/ a DELL USA LP, and ENTERGY CORPORATION, and ENTERGY SERVICES, INC., and ENTERGY GULF STATES LOUISIANA, LLC, and TRINITY PROPERTY CONSULTANTS / THE HUB AT BATON ROUGE
Judgment Rendered: DEC 15 2021
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. C660176
Honorable Donald R. Johnson, Judge Presiding
Joseph E. " Jed" Cain Counsel for Plaintiff/ Appellant Mikalia M. Kott Cassandra Skaggs James C. Klick New Orleans, LA
Douglas J. Cochran Counsel for Defendants/ Appellees Walter F. Metzinger, III Amazon. com, Inc., Amazon Baton Rouge, LA Fulfillment Services, Inc., Amazon Web Services, Inc., and Amazon Services, LLC
BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ. McCLENDON, J.
In this personal injury case, the plaintiff appeals a trial court judgment that
granted the defendants' motion for summary judgment. For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
On April 5, 2016, Cassandra Skaggs, a graduate student at Louisiana State
University in Baton Rouge, purchased a lithium ion battery through Amazon. com,
as a replacement for the battery in her Hewlett- Packard laptop computer.
Approximately seven months later, on November 3, 2016, Ms. Skaggs was sitting
on her bed in her apartment, with the computer in her lap, when the replacement
battery became hot and burst into flames, igniting the bed and bedding and
causing burns and other injuries to her hands, legs, thighs, and buttocks. As a
result, Ms. Skaggs was admitted to the Baton Rouge General Hospital Burn Center
for approximately ten days, where she underwent daily debridement procedures
and eventual surgery.
Thereafter, on August 3, 2017, Ms. Skaggs, filed a Petition for Damages,
naming as defendants Amazon. com, Inc., Amazon Fulfillment Services, Inc.,
Amazon Web Services, Inc., Amazon Services, LLC ( collectively " Amazon"),
Talented & Gifted ( T&G), Hewlett- Packard Company ( HP), Entergy Corporation,
Entergy Services, Inc., Entergy Gulf States Louisiana, LLC, Entergy Louisiana, LLC
collectively " Entergy"), and Trinity Property Consultants, LLC ( Trinity).' Ms.
Skaggs asserted that Amazon and T&G were the manufacturers and sellers of the
battery within the meaning of the Louisiana Products Liability Act ( LPLA) and,
therefore liable to Ms. Skaggs because of the unsafe, unreasonably dangerous,
and defective battery. She averred that, although the " seller" of the battery was
identified by Amazon as T&G, T&G was merely a storefront for Amazon, or was
otherwise a sham entity. Ms. Skaggs alleged additionally, or in the alternative, to
1 Trinity, the manager of Ms. Skaggs' s apartment, and Entergy, the provider of electricity to her apartment, were subsequently granted summary judgment and dismissed from the lawsuit. Additionally, although named in the caption, Dell, Inc. a/ k/ a Dell Computer Corporation a/ k/ a Dell USA LP was removed from the caption in Ms. Skaggs First Supplemental and Amended Petition for Damages.
2 the extent that Amazon and T&G were not manufacturers, that Amazon and T&G
were liable to Ms. Skaggs for their negligence and gross negligence, including the
failure to warn Ms. Skaggs of the defective nature of the battery.
In an amending petition, Ms. Skaggs asserted that Amazon undertook the
monitoring of products sold on its website and that, through its monitoring activity,
Amazon was aware of the potential risks with lithium ion laptop batteries sold on
its website, and particularly with regard to several related sellers that included
T&G. Ms. Skaggs averred that because Amazon had assumed the duty of
monitoring its products and because Amazon failed to notify her of the risks and
potential risks of explosions and fires associated with the battery she purchased,
Amazon was liable to her for the failure to warn, which was a direct and proximate
cause of her injuries and damages.
On October 31, 2019, Amazon filed a motion for summary judgment,
contending that it was entitled to judgment as a matter of law. Amazon asserted
that it was neither the manufacturer nor seller of the product and, further, that it
never undertook any duty to warn Ms. Skaggs of hazards of the specific battery
she purchased. Following a hearing on March 9, 2020, the trial court granted
Amazon' s motion for summary judgment. The trial court signed a judgment on
April 22, 2020, and Ms. Skaggs appealed. 2 In her appeal, Ms. Skaggs assigns as
z In its judgment, the trial court provided the following reasoning:
As [ Ms. Skaggs] acknowledged in briefing and at oral argument, 1. Amazon was not the manufacturer of the battery. [ Ms. Skaggs] at argument expressly abandoned her claim for strict liability against Amazon under the Louisiana Products Liability Act (" LPLA'). Accordingly, [ Ms. Skaggs' s] strict liability claim against Amazon is dismissed.
2. [ Ms. Skaggs' s] negligence claim against Amazon is also dismissed because Amazon was not the seller of the battery. It was undisputed that Amazon did not have title to or possession of the battery. See [ LSA-] R. S. 9: 2800. 53( 2) Seller' means a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value.'; Slaild v. Evergreen Indem., 32, 363 La. App 2 Cir. 10/ 27/ 99), 745 So. 2d 793, 799 ( courts use LPLA's definition of seller in analyzing whether there is a negligence claim against a non -manufacturer seller).
3. [ Ms. Skaggs' s] assumed -duty claim against Amazon is dismissed because, even if there are fact issues on whether Amazon assumed and breached a duty to warn, [ Ms. Skaggs] has presented no evidence to support the other elements of an assumed -duty claim, namely that negligent performance of the undertaking increased the risk of harm to [ Ms. Skaggs] or that [ Ms. Skaggs' s] harm was caused by reliance on the undertaking. See Bujol v. Entergy Servs., Inc., 3 error, 1) the trial court's finding that Amazon was not a seller of the battery at
issue, and 2) the trial court's dismissal of her claim that Amazon assumed a duty
to warn her about the dangerous battery and breached that duty.
STANDARD OF REVIEW
The summary judgment procedure is favored and is designed to secure the
just, speedy, and inexpensive determination of every action. LSA- C. C. P. art.
966A( 2). After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is
entitled to judgment as a matter of law. LSA- C. C. P. art. 966A( 3).
The burden of proof rests with the mover. LSA- C. C. P. art. 966D( 1).
Nevertheless, if the mover will not bear the burden of proof at trial on the issue
that is before the court on the motion for summary judgment, the mover's burden
on the motion does not require him to negate all essential elements of the adverse
party' s claim, action, or defense, but rather to point out to the court the absence
of factual support for one or more elements essential to the adverse party's claim,
action, or defense. The burden is on the adverse party to produce factual support
sufficient to establish the existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law. LSA- C. C. P. art. 966D( 1).
Further, when a motion for summary judgment is made and supported, an
adverse party may not rest on the mere allegations or denials of his pleading, but
his response, by affidavits or as otherwise provided, must set forth specific facts
showing that there is a genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be rendered against him. LSA- C. C. P. art. 967B.
In determining whether summary judgment is appropriate, appellate courts
review evidence de novo under the same criteria that govern the trial court's
03- 0492 ( La. 5/[ 25]/ 04), 922 So. 2d 1113, 1129 (" Even if a plaintiff proves the assumption of a duty under that standard and that the defendant failed to exercise reasonable care to perform this undertaking, he can only recover if he further proves that either (a) the defendant's failure to exercise reasonable care increased the risk of such harm; ... or ( c) harm is suffered because of reliance ... upon the undertaking.'; Restatement ( Second) of Torts § 323.
0 determination of whether summary judgment is appropriate. Durand v.
Graham, 19- 1312 ( La. App. 1 Cir. 6/ 12/ 20), 306 So. 3d 437, 440.
DISCUSSION
Amazon is an online marketplace that operates an online store at
www.amazon. com. Amazon describes its online store as a service where millions
of third -parry sellers list products for sale, setting their own prices, and describing
their own products. Although Amazon retails some products in its store, it is one
of millions of sellers offering products there. When Amazon is the seller of a
product, it sources the product, sets the price, and holds title to the product.
Additionally, Amazon is listed as the seller in the "sold by" line on the product detail
page and transaction records. This case does not involve an Amazon -listed
product.
Where a third parry is the seller, it is identified in the " sold by" line next to
the price and shipping information on the product detail page. The order
confirmation page again identifies the seller before the user clicks the " place your
order" button. The third -party seller decides what to sell, sources the product,
sets the price, and ensures that it is the seller of the product. Additionally, the
third -parry seller is responsible for ensuring that the product complies with all
applicable laws.
All third -party sellers must operate under the Amazon Services Business
Solutions Agreement ( BSA). Amazon ensures that third -party sellers agree to the
BSA by requiring assent as a step in the seller account set- up process. The BSA
requires the third -party seller to provide " Required Product Information," which
includes, among other things, description of the product, availability status,
images, price, 3 shipping and handling charges, and ' zany text, disclaimers,
warnings, notices, labels, warranties, or other content required by applicable Law
to be displayed in connection with the offer, merchandising advertising, or sale of"
the seller's product.
3 Prior versions of the BSA, including the version in effect when the sale at issue occurred in 2016, required pricing parity with the sellers' other channels; however, this parity provision is not found in the current BSA.
5 Amazon provides payment processing for third -party sellers. It charges the
payment instrument designated in the buyer's account and, on a periodic basis,
remits the purchase price to the third -party seller minus the service fees the seller
agreed to in the BSA.
Further, when setting up an account and again when placing an order with
Amazon, purchasers assent to Amazon' s Conditions of Use. The Conditions of Use
provide that Amazon disclaims all warranties for products sold by third -party
sellers. The only warranty provided for a product comes from the third -parry
seller.
Amazon has a Product Safety Team that monitors customer reviews and
other data sources to identify product safety issues, regardless of whether the
product was sold by Amazon or by a third -party seller. If an issue is identified,
Amazon may remove a product from the store or suspend the seller.
Products are classified by Amazon Standard Identification Numbers, known
as ASINs. Different products have different ASINs. In September 2016, the
Product Safety Team identified safety reports with certain batteries bearing certain
ASINs sold by four third -party sellers, one of which was T&G. Eventually, the
Product Safety Team identified approximately sixty safety reports for batteries sold
by those sellers, which were spread across fifty ASINs. Those ASINs represented
about 0. 7% of all battery ASINs offered by those four sellers. As a result, Amazon
decided to email customers who had purchased batteries bearing ASINs with
reported concerns to advise them that the product may represent a fire hazard
and to provide a refund. The battery purchased by Ms. Skaggs was listed under
ASIN B00748GAD2, and there were no safety- related reports associated with ASIN
B00748GAD2 before Ms. Skaggs' s injury. Amazon did not send a message to Ms.
Skaggs prior to her injury as there were no safety reports associated with the
particular product she purchased.
The Louisiana Products Liability Act ( LPLA) " establishes the exclusive
theories of liability for manufacturers for damage caused by their products." LSA-
R. S. 9: 2800. 52. The LPLA extends liability to the manufacturer, which means a
0 person or entity who is in the business of manufacturing a product for placement
into trade or commerce. LSA- R. S. 9: 2800. 53( 1). In contrast, the LPLA defines a
seller" as " a person or entity who is not a manufacturer and who is in the business
of conveying title to or possession of a product to another person or entity in
exchange for anything of value." LSA- R. S. 9: 2800. 53( 2).
Initially, we point out that Ms. Skaggs has abandoned her strict liability
claim under the LPLA, wherein she had asserted that Amazon was the
manufacturer of the battery at issue. Ms. Skaggs has not assigned as error the
failure of the trial court to find Amazon liable to her under the LPLA, and in
argument to the trial court, as well as to this Court, Ms. Skaggs acknowledged that
Amazon was not the manufacturer of the battery that injured Ms. Skaggs.
However, in her first assignment of error, Ms. Skaggs contends that the trial court
erred in finding as a matter of law that Amazon was not a seller of the replacement
battery. She argues that Amazon is not liable under the LPLA, but rather as a
negligent product seller who failed to exercise reasonable care.
In order for a non -manufacturing seller to be liable to a buyer for tort
damages, the product must be defective, the seller must have had actual or
constructive notice knowledge that the product was defective, and the seller must
have failed to declare the defect. Alexander v. Toyota Motor Sales, U. S. A.,
13- 0756 ( La. 9/ 27/ 13), 123 So. 3d 712, 714. See also Slaid v. Evergreen
Indem., Ltd., 32, 363 ( La. App. 2 Cir. 10/ 27/ 99), 745 So. 2d 793, 799 ( a non-
manufacturing seller who does not vouch for the product by holding it out as his
own does not incur strict manufacturer's liability under the LPLA, but is responsible
for damages in tort"' only if he knew or should have known that the product sold
was defective, and failed to declare it"). All elements must be proven, and a lack
of factual support for any element renders summary judgment appropriate.
Alexander, 123 So. 3d at 714.
Although Ms. Skaggs acknowledges that Amazon was not the manufacturer
of the battery at issue, she argues that Amazon' s role is as a retailer, with control
over transactions on its marketplace, who knew or should have known about the
7 dangers posed by the battery before Ms. Skaggs was burned, but failed to provide
any kind of warning or notice to her. She avers that she put the battery in
Amazon' s " shopping cart," paid Amazon for the battery, and never had any contact
with T&G. Also, she asserts that Amazon received a fee from the sale of the
battery in exchange for participation in the sale. Therefore, according to Ms.
Skaggs, because Amazon was in the business of and directly participated in the
sale that resulted in Ms. Skaggs taking title to and possession of the battery,
Amazon is liable for tort damages as a non -manufacturing seller.
Ms. Skaggs contends that the trial court erred in interpreting LSA- R. S.
9: 2800. 53( 2) contrary to the statute' s plain language, requiring a seller to have
title to or possession of the thing sold. Ms. Skaggs avers that the trial court's
interpretation of LSA- R. S. 9: 2800. 53( 2) is contrary to the plain language of the
statute and submits that had the legislature intended to limit the definition of a
seller to require conveying title to or possession of a product " from itself" to
another person or entity, the legislature would have included such language.
Rather, she suggests, being " in the business of conveying title to or possession of
a product" is broad enough to include a variety of different circumstances under
which a sale can take place. Ms. Skaggs argues that the Louisiana legislature did
not intend to allow a Goliath like Amazon to superimpose additional statutory
language to avoid liability at the expense of Louisiana citizens. Additionally, she
posits that there can be more than one seller of a product and that Amazon' s
business model was created for the purpose of conveying title to and possession
of products from one parry to another.
In contrast, Amazon contends that the plain language of LSA- R. S.
9: 2800. 53( 2) forecloses Ms. Skaggs' s attempt to expand seller status to online
marketplaces that facilitate sales by third parties. Amazon argues that Amazon
had no title or possession to convey. Further, Amazon argues that if the legislature
intended " seller" to include facilitators, it would have said so. Amazon maintains
that although Ms. Skaggs argues that "[ i] t is time for the law to catch up with
01 Amazon," any reordering of the rules governing e- commerce must come from the
legislature.
The interpretation of any statutory provision begins with the language of
the statute itself. Oubre v. Louisiana Citizens Fair Plan, 11- 0097 ( La.
12/ 16/ 11), 79 So. 3d 987, 997, cert denied, 567 U. S. 935, 133 S. Ct. 30, 183 L. Ed. 2d
677 ( 2012). When a provision is clear and unambiguous and its application does
not lead to absurd consequences, its language must be given effect, and its
provisions must be construed so as to give effect to the purpose indicated by a
fair interpretation of the language used. LSA- C. C. art. 9; LSA- R. S. 1: 4;
Oubre, 79 So. 3d at 997. Unequivocal provisions are not subject to judicial
construction and should be applied by giving words their generally understood
meaning. LSA- C. C. art. 11; LSA- R. S. 1: 3; Oubre, 79 So. 3d at 997. Courts are
bound, if possible, to give effect to all parts of a statute and to construe no
sentence, clause, or word as meaningless and surplusage if a construction giving
force to and preserving all words can legitimately be found.
Oubre, 79 So. 3d at 997. Further, questions of law, such as the proper
interpretation of a statute, are reviewed under the de novo standard of review.
Thibodeaux v. Donnell, 08- 2436 ( La. 5/ 5/ 09), 9 So. 3d 120, 123.
In this matter, the evidence offered in support of Amazon' s motion for
summary judgment included the affidavit and deposition of Deborah Harvey,
Amazon' s representative.4 Ms. Harvey attested that with regard to the battery at
issue, Amazon did not sell the battery, never possessed or touched the battery
that T&G sold to Ms. Skaggs, and never took title to the battery. Further, she
stated that T&G shipped the battery directly to Ms. Skaggs, that Amazon never
labeled the battery as its own ( or labeled it at all), as T&G created the warnings,
4 Ms. Harvey stated that she has worked at Amazon since 2007 and was Senior Manager for Fulfillment Center Build -Out Standards from April 2014 until January 2017, Senior Manager, Product Safety from January 2017 to June 2019, and beginning in June 2019 is Head of AWS Launch Operations. She attested that the facts in her affidavit were based on her personal knowledge, including knowledge of Amazon' s business records and operations, and the agreements Amazon enters into with customers and third -party sellers.
9 instructions, and labeling for the battery, and that Amazon had no role in those
decisions.
Ms. Harvey explained that, in the Amazon marketplace, the seller is
identified to the buyer throughout the product viewing and ordering process.
Specifically, the seller is identified in the " sold by" line next to the price and
shipping information on the product detail page. The order confirmation page
again identifies the seller before the user clicks the " place your order" button.
Here, the " sold by" line on the product detail page and on the order confirmation
page identified the seller as T&G. Additionally, the " fulfilled by" line on the order
detail indicated that T&G shipped the battery directly to Ms. Skaggs. Ms. Harvey
stated that T&G did not use any Amazon logistics services ( also known as
Fulfillment by Amazon' s for this transaction. A copy of the mobile phone
screenshot of the " order details" produced by Ms. Skaggs in discovery shows, the
following:
View order details
Oieef (fate Apr S. 2016 A rle 002- 5758559.4313869 Orcer totat S t S. 52 0 item)
Shipment details
Standard Shippirnl
Shipped
Apr 11. 2016 - Apr 14, 2016
U40M laptop $ 12. 53
Battery for HP Pavilion dv7- 1000 dv7-1130us dv7- 1135nr...
Q: Y I old 6jr— Wilented & the
CONTACT SELLER
Payment information
Payment Method
10 We find that Amazon met its initial burden of pointing out to the court the
absence of factual support for an element essential to Ms. Skagg' s claim, i. e., that
Amazon was the seller of the battery that injured Ms. Skaggs. Accordingly, the
burden then shifted to Ms. Skaggs to produce factual support sufficient to establish
that she would be able to satisfy her evidentiary burden at trial. To this end, Ms.
Skaggs offered evidence, including the affidavit of Zal Phiroz, experienced in the
area of supply chain management. Dr. Phiroz attested that "[ w] ith Amazon
fulfilling the role of listing products, promoting products, accepting payment and
essentially selling products, advertising products, and handling return processes,
customer complaints and customer inquiries, they are acting in the capacity of a
retailer/ seller." According to Dr. Phiroz, Amazon sold lithium ion laptop batteries
in partnership with T&G. 5
Upon our thorough review of the law, jurisprudence, and evidence
submitted in support of and in opposition to the motion for summary judgment,
we find that Ms. Skaggs failed to present sufficient evidence to establish that
Amazon was the seller of the battery at issue. Considering the plain language of
LSA- R. S. 9: 2800. 53( 2), in the context of third -party sellers, we cannot say that
Amazon is in the business of conveying title to or possession of a product to
another person or entity in exchange for anything of value, as the battery was
shipped directly to Ms. Skaggs from T&G and Amazon never had the title to or
possession of the battery sold. Amazon had no control or influence over the design
or construction of the product sold, did not assume or administer product warranty
obligations, did not hold the product out as its own, and had no control over
warnings, instructions, and labeling. Based on the evidence presented, we cannot
say that Amazon became a party to the sale by furnishing the machinery that made
5 We note that Amazon did not object to the affidavit of Dr. Phiroz. Therefore, the affidavit is in evidence and must be considered. art. 966D( 2); Talbert v. Restoration See LSA- C. C. P. Hardware, Inc., 17- 0986 ( La. App. 1 Cir. 5/ 31/ 18), 251 So. 3d 532, 539, writ denied, 18- 1102 ( La. 10/ 15/ 18), 253 So. 3d 1304. Nevertheless, after examining the affidavit of Dr. Phiroz, we find that his testimony consisted of legal opinions and conclusions of law. The ultimate issue to be decided herein is whether Amazon is a seller under Louisiana law, which is the province of the trial court. Ultimate or conclusory facts and conclusions of law are not to be utilized on a summary judgment motion. Thompson v. South Central Bell Tel. Co., 411 So. 2d 26, 28 ( La. 1982); Labarre v. Occidental Chemical Company and Texas Brine Company, LLC, 17- 1370 ( La. App. 1 Cir. 6/ 4/ 18), 251 So. 3d 1092, 1102, writ denied, 18- 1380 ( La. 12/ 3/ 18), 257 So. 3d 196.
11 the sale possible. Accordingly, we find that Amazon does not meet the definition
of a seller in the transaction at issue, and this assignment of error lacks merit.
Nevertheless, in her second assignment of error, Ms. Skaggs argues that,
by taking safety -product actions, Amazon assumed a duty to warn her about the
defective battery and breached that duty. Ms. Skaggs contends that prior to her
accident, Amazon was aware of at least fifty other fires or explosions associated
with replacement laptop batteries supplied by related suppliers, approved by
Amazon. These related suppliers included T&G. She maintains that Amazon
recognized that these defective batteries were coming from three particular
suppliers, which shared common ownership, namely, Goodtime, E -Life, and T&G,
and were sourced from the same unsafe manufacturer. Ms. Skaggs argues that
once Amazon was aware that laptop batteries from these related suppliers were
exploding, it should have issued a warning to all Amazon customers who purchased
laptop replacement batteries from these suppliers, including T&G.
Ms. Skaggs further contends that she relied upon Amazon' s assumed duty
and that Amazon' s negligent performance of this duty increased her risk of harm,
according to the requirements of Section 323 of the Restatement ( Second) of
Torts. She asserts that Amazon employs numerous voluntary undertakings
allegedly to protect its customers, which include setting safety standards for
products sold on its website. Ms. Skaggs maintains, however, that Amazon does
nothing to verify that the products actually meet its own voluntary standards
before or after selling the product. Ms. Skaggs asserts that this practice not only
indicates detrimental reliance by Amazon' s customers, but also increases the risk
that products sold to its customers are unsafe. Moreover, she asserts, Amazon
has a policy of proactively monitoring the safety of products sold on its website
and warning customers when it recognizes safety concerns. This policy, Ms.
Skaggs argues, incentivizes customers, like Ms. Skaggs, to shop with Amazon.
12 Ms. Skaggs also avers that Amazon knew that it alone was the only means
of communication between Ms. Skaggs and T&G. 6 She suggests that Amazon
knew that it had no documentation that the battery at issue met the safety
standards voluntarily set by Amazon, yet chose to warn only certain T&G
customers, being those customers who reported product safety issues with specific
battery models. By failing to warn Ms. Skaggs, the battery remained in use, and
Amazon therefore increased the risk that she would be harmed by the battery.
Consequently, Ms. Skaggs suggests, she was lulled into believing that the battery
was safe, when Amazon had reason to believe it was not.
Moreover, Ms. Skaggs argues that the fact that there were no complaints
regarding the specific model of battery purchased by Ms. Skaggs before her
accident is not dispositive of Amazon' s knowledge of dangers in the entire line of
batteries supplied by T&G. Ms. Skaggs maintains that, given the sheer number of
explosions and fires caused by T&G batteries prior to Ms. Skaggs' s injuries, about
which Amazon knew, questions of fact remain as to when Amazon had notice that
the battery purchased by her was defective.
To the contrary, Amazon contends that Ms. Skaggs' s claim is a post -sale
warning claim. Amazon maintains that its voluntary decision to message buyers
of specific battery models that had reported safety concerns did not create a post -
sale duty to warn in this instance. Amazon avers that Ms. Skaggs failed to present
evidence establishing either a voluntary undertaking that increased the risk of
harm to her or that her reliance on the undertaking caused her injury, in
accordance with Section 323 of the Restatement ( Second) of Torts.
In Bujol v. Entergy Services, Inc., 03- 0492 ( La. 5/ 25/ 04), 922 So. 2d
1113, 1129, the Louisiana Supreme Court, while recognizing the applicability of
the Restatement ( Second) of Torts, discussed the elements of a negligent
undertaking claim. The Bujol case involved a claim that a parent corporation
voluntarily assumed a subsidiary' s obligation to ensure the safety of the
6 We note, however, that the screenshot of Ms. Skaggs' s " order details" indicated that it contained a link to " contact seller."
13 subsidiary's plant. Bujol, 922 So. 2d at 1121- 22. Although the supreme court
drew from the elements in Section 324, which addresses assumed duties for the
protection of third parties, Bujol was clear that negligently performing a
voluntarily assumed duty was not enough. The supreme court stated that the
plain language of Section 324A establishes that an assumption of duty arises when
the defendant undertakes to render services, to another, and which the defendant
should recognize as necessary for the protection of a third person. The supreme
court explained that even if a plaintiff proves the assumption of a duty under that
standard and that the defendant failed to exercise reasonable care to perform this
undertaking, he can only recover if he further proves that ( a) the defendant' s
failure to exercise reasonable care increased the risk of such harm; or ( b) the
defendant has undertaken to perform a duty owed by the employer to the injured
employee; or ( c) harm is suffered because of reliance of the employer or the
injured employee upon the undertaking. Bujol, 922 So. 2d at 1129.
In the case sub judice, the elements outlined in the Restatement ( Second)
of Torts § 323 are similar to those in Bujol. Section 323 provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
a) his failure to exercise such care increased the risk of such harm, or
b) the harm is suffered because of the other's reliance upon the undertaking.
Ms. Harvey attested that the Amazon Product Safety Team monitors
customer reviews and other data sources to identify potential product safety
issues, regardless whether the product was sold by Amazon or a third -parry seller,
and that if an issue is identified, Amazon may remove a product from the store or
suspend the seller. She further explained that in September of 2016, several
months after Ms. Skaggs' s purchase, Amazon' s Product Safety Team identified
safety issues with certain battery models sold by four third -parry sellers, one of
which was T&G. Eventually, Amazon' s Product Safety Team identified
14 approximately sixty safety reports for batteries sold by those sellers, which were
spread across fifty ASINs. Ms. Harvey stated that Amazon emailed the buyers of
those specific battery models to advise them that the product may present a fire
hazard and to provide a refund, but did not send a message to Ms. Skaggs because
there were no safety reports associated with the product that she purchased.
Ms. Harvey attested that there were no safety- related reports associated
with the particular battery, ASIN B00748GAD2, purchased by Ms. Skaggs before
her injury and that Ms. Skaggs"s accident was the first report of a safety concern
with that particular model. Further, Ms. Harvey testified in her deposition, that at
the time of Ms. Skaggs' s accident, Amazon had evidence that only those specific
models with customer complaints were unsafe. Therefore, according to Ms.
Harvey, Amazon had evidence that some of T&G' s battery models were unsafe,
but not that all of T&G' s battery models were unsafe.' Ms. Harvey also stated that
Amazon removed from the website the particular model sold to Ms. Skaggs after
receiving the report of Ms. Skaggs' s accident.$
After our careful de novo review of the record, we find that Amazon
sufficiently pointed out to the court the absence of factual support regarding Ms.
Skaggs' s negligent undertaking claim. Ms. Skaggs was then required to produce
factual support sufficient to establish the existence of a genuine issue of material
fact or that the mover was not entitled to judgment as a matter of law. Even were
we to determine that Amazon voluntarily assumed a duty to protect Ms. Skaggs
and breached that duty, we find that Ms. Skaggs failed to present sufficient
evidence to establish that Amazon' s actions either increased the risk of harm to
Ms. Skaggs or that her reliance on the undertaking caused her injury. See
Restatement ( Second) of Torts § 323.
Amazon' s internal monitoring of potential safety issues could not have
increased Ms. Skaggs' s risk of harm. Also, Amazon' s notification to purchasers of
Ms. Harvey testified that with regard to customer complaints, there were three reports of complaints to Amazon that specifically involved T&G prior to Ms. Skaggs' s November 3, 2016 accident, which occurred on September 12, 2016, October 17, 2016, and October 19, 2016.
8 Ultimately, Amazon removed T&G as a seller on its website. 15 other battery models with safety issues did not increase Ms. Skaggs risk of harm.
Ms. Skaggs failed to sufficiently show that any failure by Amazon to notify her of
safety issues with other battery models of T&G increased the risk of harm to her
over the level of risk that existed before Amazon became involved. See Bujol,
922 So. 2d at 1135. An increased risk means some physical change to the
environment or some other material alteration of circumstances. Id. Ms. Skaggs
was unable to produce evidence that established that Amazon' s actions increased
the risk of harm to her such that she was worse off than if Amazon had taken no
action at all.
Additionally, the evidence presented by Ms. Skaggs did not establish that
the harm she suffered was caused by her reliance on the actions that Amazon took
with respect to T&G. The emails sent to notify purchasers of T&G batteries with
safety issues did not concern the ASIN she purchased. Ms. Skaggs presented no
evidence that she was aware of these actions undertaken by Amazon before her
accident, and she could not show that she affirmatively relied on Amazon' s actions.
Accordingly, we find this assignment of error is also without merit, and summary
judgment in favor of Amazon was appropriate.
CONCLUSION
For the foregoing reasons, we affirm the April 22, 2020 judgment of the
trial court, granting summary judgment in favor of Amazon. com, Inc., Amazon
Fulfillment Services, Inc., Amazon Web Services, Inc., and Amazon Services, LLC,
dismissing the claims of Ms. Skaggs against them. All costs of this appeal are
assessed to Cassandra Skaggs.
AFFIRMED.