Catherine M. Sharkey

Volume 73, Issue 5, 1327-1352

Products liability in the digital age entails reckoning with the transformative shift away from in-person purchases at brick-and-mortar stores to digital purchases from e-commerce platforms. The epochal rise of the online storefront has vastly expanded the prevalence of direct-to-consumer sales, implicating complex questions of how liability rules should respond when those consumers are harmed by the products they buy, especially in this age of international e-commerce and cross-border sales.

Imposing liability on online platforms on grounds of their superior ability to prevent harms from newly emergent risks, i.e., their status as “cheapest cost avoiders,” reveals courts’ efforts to vindicate the regulatory needs of society, and hence pin responsibility on entities in the best position to have readily avoided harm arising from the imposition of excessive risks. Products liability is a microcosm of how the common law evolves over time, specifically, here, to respond to new societal risks—posed by the automobile, mass-produced goods, and now, digital e-commerce. At each juncture in the development of products liability law, judges have relied explicitly on deterrence, or prevention of harm, rationales to address new forms of risks and prevent them from materializing into harms, and in doing so, have recognized new harms and/or expanded tort liability.