Functional Tort Principles for Internet Platforms: Duty, Relationship, and Control

Edward J. Janger
Aaron D. Twerski
26 YALE J.L. & TECH. 1
Over the last seven decades, mainstream U.S. torts jurisprudence shifted dramatically from rigid formal rules—focused on duty and culpability—to more flexible norms and principles of accountability. This shift was part of a general transformation of tort law that can be observed in the case law, the Restatements, and academic scholarship. Recently, however, where internet platforms such as Amazon are involved, courts appear to have reverted to a formalistic approach to limit duty, and hence liability, for personal injuries caused by the sale of defective products using the platform. With a few notable exceptions, courts have focused on the word “seller” in § 402A of the Second Restatement of Torts and have concluded that Amazon is not a “seller” when it facilitates a sale between a customer and a third-party merchant.
This Article is the third in a series of articles that develop a functional, control-based approach to platform liability. It proceeds in five steps. First, we develop the general tort principles that govern liability for transactions in defective consumer products. Second, we show how Amazon, as a platform situated squarely between a third-party seller and the customer, has control over both sides of that transaction. This places Amazon in a position where they should be held accountable as a non-manufacturing seller, where the third-party seller is not amenable to suit. Third, we give an example of how courts have resisted this conclusion, taking shelter in formal concepts of title rather than traditional understandings of culpability and loss allocation. Fourth, we develop a functional approach to platform liability that uses traditional tort principles to evaluate the platform’s role in a transaction and apply those principles to Amazon. Lastly, we consider how these principles should apply to platforms generally.