Citation[]
Inman v. Technicolor USA, Inc., 2011 WL 5829024 (W.D. Pa. Nov. 18, 2011).
Factual Background[]
Plaintiff purchased vacuum tubes, or products containing vacuum tubes, from a number of vendors and distributors, including eBay. Plaintiff brought this action alleging that his purchases were defective and otherwise harmful and he sought to hold eBay liable for his damages. While the court seemed sympathetic to the Plaintiff’s injuries, and the distinct possibility that he had a claim against the direct seller, eBay’s motion to dismiss was granted based in part on the immunity granted to eBay by Section 230 of the Communications Decency Act.
The Plaintiff did not allege that eBay manufactured or otherwise contributed to the design, creation, or subsequent defects of the vacuum tubes in question. Instead, Plaintiffs sole theory of liability stems from eBay's participation in hosting the seller’s auction and facilitating the defective products’ entry into the stream of commerce. Plaintiff’s complaint alleges that eBay’s "[d]irect conduct" in placing the vacuum tubes into the stream of commerce makes eBay a seller for purposes of section 402A of the Second Restatement of Torts, which governs strict product liability.
A defendant can only be held strictly liability for harm caused by a defective or unreasonably dangerous product if he was a "seller" of the product under Section 402A. Status as a seller depends on the relationship between the defendant, the defective product, and the overall chain of distribution.[1] Additionally, Pennsylvania courts have developed a four part test which asks: (1) is the defendant the only member of the marketing chain available to the injured plaintiff?; (2) would holding the defendant liable as a "seller" incentivize safety?; (3) is the defendant in a better position than the consumer to prevent the circulation of defective products?; and (4) can the defendant distribute the cost of compensating for the plaintiff’s injuries?
Pennsylvania courts have determined that a traditional auctioneer should not be held strictly liable as a "seller," as an auctioneer has only a fleeting relationship with the goods or their manufacturer.[2] Unless an auctioneer deals exclusively for a manufacturer or business enterprise, or deals regularly in his product, he is the medium and the message but not a regular seller as conceived by section 402A.
In considering the pleadings, eBay’s website and its terms of use, the court determined that the Plaintiff had insufficiently plead any direct claim against eBay as a "seller." Furthermore, eBay was immune from action based on the postings of its users pursuant to CDA § 230. In applicable part, Section 230 states that "[n]o provider or user of an interactive computer service shall be treated as the publisher of speaker of any information provided by another information content provider." While Plaintiff argued that Section 230 of the CDA only applies to communication, and not conduct, courts applying section 230 have consistently applied it to communication which resulted in tortious conduct. Similar cases have analogized a claim against a provider for user activities as a claim against the provider for failure to prevent or screen "the dissemination of a third party’s content . . ."[3]
While it is apparent that the Plaintiff was injured by the tortious activity of the seller, eBay was immune from suit based on that tortious conduct where its only participation was as a third-party service.