Online Retailer Avoids Liability in Suicide Cases (For Now)

This Article discusses self-harm and suicide. If you or a loved one is struggling, call or text the 24-hour Suicide Crisis Lifeline at 988, the National Suicide Prevention Lifeline at 800-273-8255, text HOME to 741741, or visit SpeakingOfSuicide.com/resources for additional resources.

A Washington State Court of Appeals recently ruled that Amazon cannot be liable under the Washington Product Liability Act (“WPLA”) for selling sodium nitrite, a chemical used in different applications, to individuals who used the product to commit suicide. Scott v. Amazon.com, Inc., 559 P.3d 528 (Wash. Ct. App. Nov. 25, 2024). Applying somewhat different reasoning, the Western District of Washington reached the same conclusion in 2023 in McCarthy v. Amazon.com, Inc., 679 F. Supp. 3d 1058 (W.D. Wash. 2023).

In both cases, plaintiffs alleged that Amazon intentionally concealed information by removing users’ negative reviews warning about the use of sodium nitrite to commit suicide. Scott, 559 P.3d at 537; McCarthy, 679 F. Supp. 3d at 1073. Scott found the allegations did not amount to a misrepresentation “about the product,” as required by the WPLA; while McCarthy focused on the immunity afforded to “providers of interactive computer services against liability arising from content created by third parties.” Scott, 559 P.3d at 537; McCarthy, 679 F. Supp. 3d at 1073.

As to plaintiffs’ negligence claims under the WPLA, both courts agreed that a seller has no duty to warn of known or obvious risks. Scott, 559 P.3d at 539; McCarthy, 679 F. Supp. 3d at 1070-71. The product labeling warned of the dangers of ingesting sodium nitrate, and the buyers purchased the product for its known dangerous propensities. Id. As a result, the McCarthy court concluded that any alleged failure to warn by Amazon could not be a proximate cause of plaintiffs’ injuries. McCarthy, 679 F. Supp. 3d at 1072.

Scott, on the other hand, focused on established state court precedent regarding suicide. First, “the law provides no general duty to protect others from self-inflicted harm, i.e., suicide.” Scott, 559 P.3d at 540. Second, nearly a century ago, the Washington Supreme Court ruled that intentional acts of suicide break the causal chain. Id. at 542-44. The Washington Supreme Court will need to weigh in on whether that ruling remains good law following the state’s adoption of a general duty to exercise reasonable care to avoid foreseeable consequences. Id. at 544.

Scott and McCarthy openly disagreed as to whether seller liability under the WPLA requires a defective product. Scott said no based on the WPLA’s plain language, but McCarthy disagreed, entertaining uncontested argument by Amazon based on common law and legislative history. Id. at 538-39; McCarthy, 679 F. Supp. 3d at 1069-70.

It is anticipated that Scott will be appealed to the Washington Supreme Court and McCarthy is already with the Ninth Circuit, which may delay a ruling until Washington’s high court weighs in on whether controlling law needs to adapt to “lived experiences,” like online selling and algorithmic marketing. Scott, 559 P.3d at 545. For instance, the Scott court was “jarr[ed]” by Amazon’s algorithm “recommending” other suicide-related products along with sodium nitrate but concluded that was not a misrepresentation under the current law. Id. at 537. 

With both federal and state legislative bodies also considering measures to address the sale of sodium nitrite on consumer platforms, this issue may mark a turning point in the evolution of products liability law.