The Washington Supreme Court has opened the door for lawsuits against retailers like Amazon for selling non-defective products that customers used to commit suicide.
The court ruled last in Scott v. Amazon.com that cases alleging the online retailer negligently sold sodium nitrite to consumers who used the product in their suicides should proceed past the motion-to-dismiss stage and possibly head to a jury on issues of causation.
The consolidated cases were brought under the Washington Product Liability Act by the estates and families of four individuals – ranging in age from 17 to 27 years old – who purchased sodium nitrite from Amazon to aid in their suicides.
Though sodium nitrite can be used at low levels as a meat preservative, it is lethal when ingested and has no household application – facts plaintiffs allege Amazon had been made aware of by parents of others who committed suicide using the same product, a letter from the U.S. Food and Drug Administration and the fact that other countries require Amazon to control the sale of sodium nitrite to prevent its use in suicide.
Plaintiffs also alleged that Amazon “promoted the sale of sodium nitrite on its website alongside other products that would assist in carrying out suicide,” “routinely sent reminder e-mails, with advertisements for these products, to customers who viewed sodium nitrite products on the webpage” and “that one-star customer reviews from grieving family members about how the sodium nitrite product was being used for suicide were deleted by Amazon.”
And though three of the four plaintiffs were 18 or older, plaintiffs complained that the Amazon website does not verify the age of sodium nitrite purchasers.
Amazon’s motions to dismiss the claims were denied at the trial court level but the Court of Appeals reversed, holding that the plaintiffs could not state a claim under the WPLA because the plaintiffs’ suicides were a “superseding cause” and not, as a matter of law, a proximate cause of Amazon’s alleged negligence.
The Washington Supreme Court disagreed and unanimously ruled, in four separate opinions, that suicide is not a superseding cause that prevents a plaintiff from stating a claim under the WPLA.
Justice G. Helen Whitener wrote for the majority and rejected century-old precedent that a defendant’s alleged negligence could not establish liability for a plaintiff’s suicide except in the limited circumstances where there was a special relationship between the parties or “the decedent’s decision to commit suicide was proximately caused by the defendant’s negligence such that the suicide was not truly a voluntary act.”
The court instead opted to put in the hands of juries, and not judges, the question of whether “the act of suicide was a foreseeable consequence and harm of the act of selling sodium nitrite to the decedents.”
As explained by the U.S. Chamber of Commerce in its brief to the court, adopting this approach could “upend necessary limits on product-liability law in contexts far beyond” the present case and “obligate sellers to identify classes of buyers who might intentionally misuse non-defective products that are properly in the stream of commerce.”
Notwithstanding these concerns, the court, invoking a criminal law standard of proof, was “unable to say, as a matter of law, beyond a reasonable doubt, that the decedents’ deaths were not proximately caused by Amazon’s alleged tortious sales practices of the sodium nitrite.”
Justice Salvador Mungia, in a separate opinion, argued that the court should have gone further. In his view, where a retailer sells products that have no household use, are lethal when ingested and where the retailer is allegedly aware that the product is being “misused by vulnerable people” to commit suicide, the retailer has three distinct duties to consumers: “to not facilitate the use of that product to end one’s life,” “to take reasonable steps to prevent the misuse of the product by vulnerable people contemplating death by suicide” and “to warn purchasers of the immediate, painful, and likely irreversible consequences of the foreseeable misuse of the product.”
The court has been criticized as too pro-plaintiff, with the American Tort Reform Association placing it on its list of “Judicial Hellholes.” Much of the group’s gripes revolve around another products-liability case, in which Pharmacia LLC was ordered to pay $185 million for chemicals in fluorescent lights.
The court last year also gave asbestos lawyers new targets to sue, holding employers could face lawsuits despite the usual remedy being the Workers’ Compensation system.
