[Cite as Stiner v. Amazon, Inc., 2019-Ohio-586.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

DENNIS STINER                                           C.A. No.   17CA011215

        Appellant

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
AMAZON.COM, INC.                                        COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellee                                        CASE No.   15CV18837

                                 DECISION AND JOURNAL ENTRY

Dated: February 19, 2019



        SCHAFER, Presiding Judge.

        {¶1}     Plaintiff-Appellant, Dennis Stiner, Administrator of the Estate of Logan James

Stiner (“Stiner”), appeals the trial court’s entry of summary judgment in favor of Defendants-

Appellees, Amazon.com Inc.; Amazon Fulfillment Services, Inc.; Amazon Web Services, Inc.;

Amazon Services, LLC (“Amazon”), as to all claims asserted against Amazon in Stiner’s second

amended complaint. For the reasons that follow, we affirm.

                                                   I.

        {¶2}     This matter arises from the circumstances surrounding the tragic death of an

eighteen year old high school student, Logan Stiner, on May 27, 2014. His father, Dennis Stiner,

brought this action as administrator of Logan’s estate. In addition to Amazon, Stiner also named

Tenkoris LLC, d/b/a Guardian Wholesale, The Bulk Source, Hard Rhino, Guardian BioSciences

(collectively “Tenkoris”); Green Wave Ingredients, Inc. (“Green Wave”); CSPC Pharmaceutical

Co., Ltd. (“CSPC”); as well as one individual, “K.K.”, as defendants in this action. The claims
                                                2


as to all defendants other than Amazon were resolved or otherwise disposed of prior to this

appeal.

          {¶3}   In February of 2014, K.K., a friend of Logan, searched for a “pre-workout”

supplement and ultimately purchased Hard Rhino Pure Caffeine, a pure caffeine powder. She

purchased the caffeine powder through Amazon’s website (the “Amazon Site”) from a seller

identified as The Bulk Source. The Bulk Source fulfilled and shipped the order to K.K. K.K.

then shared a portion of the caffeine powder with Logan. Logan ingested a fatal dose of caffeine

powder, causing acute caffeine toxicity, which resulted in his death by cardiac arrhythmia and

seizure.

          {¶4}   After Logan’s death, Stiner commenced this action against Amazon and the other

named defendants and eventually proceeded on the second amended complaint, which asserted

ten claims against Amazon. Amazon and Stiner each filed a motion for summary judgment. The

trial court granted Amazon’s motion and entered judgment in favor of Amazon as to all claims in

the second amended complaint.

          {¶5}   Stiner filed a timely appeal of the trial court’s judgment, and raises five

assignments of error for our review. For ease of analysis, we consolidate the first four

assignments of error and consider separately the fifth assignment of error.

                                                II.

                                      Assignment of Error I

          The trial court erred in failing to “view the facts in the light most favorable
          to the non-moving party and resolve any doubt in favor of the non-moving
          party” and nevertheless granting summary judgment.
                                                3


                                    Assignment of Error II

       The trial court erred in holding, as a matter of law, that Amazon could not
       be held liable as a supplier of the lethal caffeine powder under Ohio’s
       Product Liability Act.

                                    Assignment of Error III

       The trial court erred in holding, as a matter of law, that Amazon could not
       be held liable for offering for sale an adulterated product under Ohio’s Pure
       Food and Drug Law.

                                    Assignment of Error IV

       The trial court erred in holding that Amazon’s status as a supplier or offeror
       of the lethal caffeine powder did not raise genuine issues of material fact that
       preclude summary judgment.

       {¶6}    In the first assignment of error, Stiner advances several arguments regarding the

trial court’s decision to grant summary judgment in favor of Amazon. Stiner contends that the

trial court failed to view the facts in a light most favorable to Stiner as the nonmoving party.

Further, Stiner contends that the trial court erred by determining, as a matter of law, that Amazon

was not a “supplier” or “offeror” of the caffeine powder. Stiner also argues that the trial court

failed to recognize factual disputes that precluded the grant of summary judgment. Although

Stiner presents these arguments throughout four assignments of error, the contentions raised in

the separate assignments are somewhat interdependent. To provide a thorough analysis, we

consider Stiner’s arguments collectively and in the context of the claims implicated by Stiner’s

contentions.

A. Summary Judgment Decision

       {¶7}    The trial court issued its ruling on the parties’ cross-motions for summary

judgment, granting Amazon’s motion. The court entered judgment in favor of Amazon as to all

of the claims asserted in Stiner’s second amended complaint.
                                                4


          {¶8}   The first three counts of Stiner’s complaint asserted claims pursuant to Ohio’s

pure food and drug law, R.C. 3715.01 et seq., alleging the following violations: count one, R.C.

3715.52(A)(1)-(3), prohibiting the certain acts relative to adulterated and misbranded drugs;

count two, R.C. 3715.64 regarding a misbranded drug; and count three, R.C. 3715.83, regarding

adulterated supplements. The trial court granted summary judgment on these three claims in the

absence of evidence that Amazon sold or offered for sale the caffeine powder at issue.

          {¶9}   In counts four through seven, Stiner pleaded claims under the Ohio products

liability act at R.C. 2307.71 to R.C. 2307.80. Counts four through six asserted the following

claims for manufacturer liability: count four, R.C. 2307.75, for a product defective in design or

formulation; count five, R.C. 2307.76, for a product defective due to inadequate warning or

instruction; and count six, R.C. 2307.77, for a product failing to conform to a representation.

Count seven alleged supplier negligence pursuant to R.C. 2307.78. The trial court granted

summary judgment on counts four through seven finding as a matter of law that Amazon was not

a “supplier” under the facts of this case and did not otherwise participate in placing the caffeine

powder into the stream of commerce.

          {¶10} In count eight, Stiner asserted a claim for breach of an implied warranty of

merchantability pursuant to R.C. 1302.27. Count twelve asserted a claim for fraud. Stiner

presented a demand for punitive damages in count eleven. The trial court also granted summary

judgment as to these three counts. However, because Stiner has not challenged on appeal the

trial court’s decision as to counts eight, eleven, and twelve, we confine our analysis in these

assignments of error to the trial court’s entry of judgment on Stiner’s claims in counts one

through seven. We consider the products liability claims separate from the pure food and drug

claims.
                                                 5


B. Standard of Review

          {¶11} Before summary judgment may be granted under Civ.R 56(C), the trial court must

determine each of the following:

          (1) No genuine issue as to any material fact remains to be litigated; (2) the
          moving party is entitled to judgment as a matter of law; and (3) it appears from
          the evidence that reasonable minds can come to but one conclusion, and viewing
          such evidence most strongly in favor of the party against whom the motion for
          summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). We review a trial court’s ruling on

a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105

(1996).

          {¶12} Summary judgment proceedings create a burden-shifting paradigm. To prevail on

a motion for summary judgment, the movant has the initial burden to identify the portions of the

record demonstrating the lack of a genuine issue of material fact and the movant’s entitlement to

judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In satisfying the

initial burden, the movant need not offer affirmative evidence, but it must identify those portions

of the record that support its argument. Id. Once the movant overcomes the initial burden, the

non-moving party is precluded from merely resting upon the allegations contained in the

pleadings to establish a genuine issue of material fact. Civ.R. 56(E).         Instead, it has the

reciprocal burden of responding and setting forth specific facts that demonstrate the existence of

a “genuine triable issue.” State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).

“[E]xpressions of speculation or assumptions in deposition testimony and affidavits are

insufficient to sustain the non-movant’s burden.” Messer v. Summa Health Sys., 9th Dist.

Summit No. 28470, 2018-Ohio-372, ¶ 31.
                                               6




C. Factual Background

   1. K.K. ’s Purchase and Logan’s Death

       {¶13} On February 27, 2014, Logan’s friend, K.K., searched online through the Amazon

Site for a new “pre-workout” supplement. The search results returned a number of pre-workout

products. K.K. clicked on one pre-workout product, which prompted the display of related

products, or “products that you may like,” including a product called Hard Rhino Pure Caffeine.

K.K. clicked on the link for Hard Rhino Pure Caffeine, a pure caffeine powder, which was

offered on the Amazon Site by a seller identified as The Bulk Source.

       {¶14} K.K. decided to purchase the Hard Rhino product, 1.1 lbs. of caffeine powder.

She placed the order through the Amazon website using an Amazon gift card to cover a portion

and her mother’s credit card to cover the balance. The seller, The Bulk Source, fulfilled the

order and shipped the caffeine powder directly to K.K. K.K. received the product sometime in

the first week of March 2014. She began using the caffeine powder by mixing it in her drink in a

dosage she determined by reading the reviews of the product.

       {¶15} During a text message exchange on May 26, 2014, K.K. told Logan she would

“give [him] some of [her] caffeine powder if [he] want[ed.]” Logan accepted K.K.’s offer, and

she brought a bag containing approximately one cup of the caffeine powder to him the following

day. K.K. did not show Logan the product package or label, but they exchanged text messages

discussing reasonable dosage and the dangers of ingesting too much caffeine. K.K. informed

Logan that an eighth of a teaspoon is 100mg of caffeine and comparable to “16 oz. of coke”

while a quarter teaspoon contains more caffeine than an energy drink. She indicated that she
                                                7


typically used an eighth of a teaspoon of the caffeine powder in the morning, and another after

school. She cautioned that taking too much could cause Logan to die.

       {¶16} Logan died on May 27, 2014. The Lorain County Coroner’s report indicated that

he died as a result of acute caffeine toxicity which caused cardiac arrhythmia and seizure.

Although the toxicology report did not specify the exact amount of caffeine in Logan’s system,

for the limited purpose of our present review we will assume that the caffeine powder K.K. gave

to Logan caused his death.

   2. The Product, the Businesses, and the Transaction

       {¶17} The Bulk Source is the tradename under which Tenkoris, a supplement

wholesaler, sold the caffeine powder under the brand name “Hard Rhino.” Tenkoris sourced the

caffeine powder and purchased it in bulk from Green Wave, a distributor of dietary supplements.

Green Wave imported the caffeine powder from a manufacturer in China, CSPC, and delivered it

to Tenkoris.

       {¶18} At the relevant point in time, products available through Amazon were sourced

and sold in multiple ways. In some instances, Amazon acts as a seller, retailing products offered

through the Amazon Site. The majority of sales, however, are through third-party sellers who

either, (1) source and sell their products which are stored, shipped and handled through Amazon

facilities—Amazon-Fulfilled Products—or (2) the third-party seller sources, sells, fulfills, ships,

and delivers its products—Seller-Fulfilled Products. Amazon’s Business Solutions Agreement

(“BSA”) states that “Amazon Services Business Solutions” is “a suite of optional merchant

services including the following services: Selling on Amazon, Amazon Webstore, and

Fulfillment by Amazon.”
                                                 8


           {¶19} To offer its Seller-Fulfilled Products through the Amazon Site, Tenkoris entered

into a BSA with Amazon. This enabled Tenkoris, using the trade name The Bulk Source, to

create a product listing for Hard Rhino Pure Caffeine and offer it for sale on the Amazon Site.

Tenkoris was required to input all product details, information, and images for the listing and set

the sale price for the product. Amazon then assigned an identification number and activated the

listing.

           {¶20} When K.K. placed the order for the Hard Rhino—500 grams of the caffeine

powder for $14.99 plus $5.49 for shipping—Tenkoris received notification of the sale from

Amazon. Tenkoris then fulfilled the ordered by reviewing the customer information for the

transaction, assembling and packaging the product, and then shipping it directly to K.K.

Amazon never had possession of the caffeine powder Tenkoris shipped and supplied to K.K.

Amazon captured and processed the payments for the sale, and remitted the proceeds to

Tenkoris, less the fees and costs retained by Amazon for its services.

           {¶21} At the time K.K. purchased the caffeine powder, there were no federal or state

regulations prohibiting or restricting the sale of caffeine powder. However, following Logan’s

death, the Food and Drug Administration did issue a safety alert warning consumers of the

dangers of caffeine powder. Amazon removed listings for pure caffeine powder and prohibited

the sale of such products though Amazon.

D. Claims under Ohio Products Liability Act

           {¶22} Stiner claimed that Amazon was liable as a supplier of the caffeine powder based

on supplier negligence as stated in R.C. 2307.78(A)(1). Additionally, Stiner stated three claims

for products liability pursuant to R.C. 2307.75 (design defect), R.C. 2307.76 (inadequate

warnings or instructions), and R.C. 2307.77 (non-conformance to representation). These three
                                                 9


claims impose liability on “manufacturers” which are defined as “a person engaged in a business

to design, formulate, produce, create, make, construct, assemble, or rebuild a product or a

component of a product.” R.C. 2307.71(A)(9).

       {¶23} Stiner has not challenged the trial court’s conclusion that Amazon was not a

manufacturer. Rather, it is Stiner’s position that Amazon is liable as if it were a manufacturer

pursuant to R.C. 2037.78(B). “A supplier of a product” may be liable for compensatory damages

based on products liability claims brought pursuant to R.C. 2307.75 through 2307.77 “as if it

were the manufacturer of that product” if one of eight stated factors apply. R.C. 2307.78(B).

Stiner claims that one or more of these factors applies to Amazon in its alleged role as a supplier.

       {¶24} There is a threshold consideration applicable to all four of Stiner’s products

liability claims; to be liable for any of these claims Amazon must fit the definition of a

“supplier” as stated in R.C. 2307.71(A)(15). A supplier is defined as either of the following:

       (i) A person that, in the course of a business conducted for the purpose, sells,
       distributes, leases, prepares, blends, packages, labels, or otherwise participates in
       the placing of a product in the stream of commerce;
       (ii) A person that, in the course of a business conducted for the purpose, installs,
       repairs, or maintains any aspect of a product that allegedly causes harm.

R.C. 2307.71(A)(15)(a).

       {¶25} The trial court concluded that Amazon did not install, repair, or maintain any

aspect of a product and, therefore, did not fit the definition of a supplier under R.C.

2307.71(A)(15)(a)(ii). Further, the trial court examined the evidence in light of R.C.

2307.71(A)(15)(a)(i) and determined that Tenkoris, not Amazon, was the “seller” and that

Amazon did not distribute, lease, prepare, blend, package, or label the caffeine powder. The

essential question before the trial court was “whether or not Amazon qualifies as a ‘supplier’ for

‘otherwise participat[ing] in the placing of a product in the stream of commerce’” as stated in
                                                 10


R.C. 2307.71(A)(15)(a)(i). The trial court concluded that “Amazon, under the facts of this case,

was not a supplier and did not otherwise participate in the placing of the caffeine powder in the

stream of commerce.” Stiner contends that the trial court erred in its resolution of that issue.

   1. Application of the Law to the Facts of the Case

       {¶26} To give context to the concept of “otherwise participat[ing]” as stated in R.C.

2307.71(A)(15)(a)(i), the trial court looked to a federal district court opinion applying

Pennsylvania products liability law in the context of an eBay transaction. The trial court cited

the federal district court ruling on a motion to dismiss, which stated:

       [Plaintiff] has not pled facts alleging that eBay is so connected to the overall chain
       of distribution as to suggest a relationship with the manufacturer or product
       “beyond their immediate sale.” * * * Specifically, [Plaintiff] has not alleged that
       eBay, at any time, had anything more than a fleeting connection to the allegedly
       defective products. [Plaintiff] has not alleged that eBay ever had physical
       possession of the products, that they were moved or stored in a facility owned by
       eBay, or any other facts to suggest that holding eBay responsible would
       incentivize safety, that eBay is the only member of the marketing chain available,
       or that eBay is in a better position than [Plaintiff] to prevent the circulation of
       such defective vacuum tubes.

(Internal citations omitted.) Inman v. Technicolor USA, Inc., W.D.Pa. No. CV 11-666, 2011 WL

5829024, *5 (Nov. 18, 2011).

       {¶27} Considering the analysis in Inman, the trial court below analogized that Amazon,

like eBay, provided an online forum for Tenkoris to “peddle its caffeine powder.” The trial court

stated that Tenkoris, not Amazon, provided the product information for listing on Amazon’s Site,

held the product, and arranged for shipping. The trial court noted that any issues with the

product were not related to the services that Amazon provided. Regarding Stiner’s claim that

K.K. was under the impression that Amazon sold the caffeine powder, the trial court indicated

that all evidence throughout the transaction identified The Bulk Source as the seller.
                                                  11


       {¶28} Additionally, the trial court indicated several facts relevant to the policy

consideration of Amazon’s ability to safeguard against defects in the product. For instance, the

court noted that Amazon never had physical possession of the caffeine powder, and never moved

or stored the product. The trial court also indicated that Amazon “never fulfilled the sale by

labeling, packaging, or shipping the product[,]” and noted the lack of evidence that Amazon’s

connection to the chain of distribution suggested a relationship with Tenkoris beyond the

immediate sale.

       {¶29} Stiner challenges the trial court’s application of the law and argues that the trial

court applied an “overly restrictive definition of ‘supplier’” and ignored facts that Amazon

considered relevant. Citing to a First District opinion, Welch Sand & Gravel v. O&K Trojan,

Stiner contends that the trial court was required to “look to pre-statutory precedent and to the

public policy underlying the products liability statute” to determine whether a defendant

“‘otherwise participated’ in placing [a product] in the stream of commerce.” Welch Sand &

Gravel v. O&K Trojan, 107 Ohio App.3d 218, 227 (1st Dist.1995). In Welch, the court

concluded that the defendant—a consignee—qualified as a “supplier” under R.C. 2307.71 where

it facilitated the sale of a machine to the plaintiff. The court noted that while “it is a long reach

to include a consignee of used goods in the definition of ‘supplier,’” the public policy underlying

the products liability statute required that the “risk of product-related injury” be shifted away

from the consumer. Id. at 228. The Court reasoned the consignee’s action in making the loader

available at auction constituted placing the loader into the stream of commerce and brought the

consignee within the definition of a supplier. Id. Ultimately, however, that court held that the

plaintiff had not established a sufficient claim of liability against the consignee.
                                                 12


        {¶30} Stiner contends that the public policy considerations in Welch should have been

applied to determine Amazon’s status as a supplier and liability for the caffeine powder. We

find the facts of Welch distinguishable from the facts of this case, and its analysis inapplicable.

In Welch the Court looked to the consignee that, by definition, did not own the product, but

made it available for sale through an auction and considered whether those actions warranted the

application of supplier status. Under the facts of the case at bar, Tenkoris offered the caffeine

powder for sale though the Amazon Site.          By comparison, Tenkoris is more akin to the

consignee-supplier, whereas Amazon’s role is more akin to that of the auctioneer in Welch. The

court in Welch was not faced with the question of whether the auctioneer was liable as a

“supplier” for the sale of a product. Accordingly, the public policy basis for applying seller

status to the consignee does not translate to Amazon because the evidence shows that Tenkoris,

like the consignee, may bear the risk for actually placing the product into the stream of

commerce. Welch does not support Stiner’s contention that Amazon’s peripheral role in relation

to the distributive chain of the caffeine powder placed Amazon in a position to ensure against

risks or to incentivize safety.

        {¶31} Other courts of Ohio have considered the meaning of “supplier” as it relates to

entities that provide services or are otherwise involved with the sale or distribution of a defective

product. In Long v. Tokai Bank, 114 Ohio App.3d 116, (2d Dist.1996), the court considered

whether, regarding a products liability claim, the defendant was the “supplier” of a machine it

leased, where it included in the lease a provision requiring that the lessee maintain the equipment

pursuant to the manufacturer’s instructions. The Second District reasoned that, although the

defendant retained title to the machine and required the lessee to follow the manufacturers’

maintenance schedule to preserve the machine, the defendant (1) “did not participate in the
                                                13


selection of the product or in negotiations about the product” and (2) as lessor, the defendant’s

“role was one of offering the use of money, not of supplying the [machine].” Id. at 125. The

court expressed concern over “‘catastrophic impact[s] on commerce’” that might result from

placing the responsibility for detecting defects on entities that “‘are not equipped to pass upon

the quality of the myriad of products they are called upon to finance’” and which do not have a

direct impact in the manufacturing process or relationship with the manufacturer. Id. at 125,

quoting Nath v. Natl. Equip. Leasing Corp., 497 Pa. 126, 132, 439 A.2d 633 (1981). In Tokai,

the court stated that such “tangential participation does not justify the imposition of strict

liability” and held that the lessor was not a “supplier” for purposes of the products liability

claims. Id. at 126, quoting Nath at 132.

        {¶32} The Sixth District considered a products liability claim asserted against a non-

profit entity that, for purposes of its annual go-kart race fundraiser, had purchased go-karts and

then sold them to companies and organizations who wished to participate in the race by

sponsoring a car. Morris v. Junior Achievement of Northwest Ohio, Inc., 6th Dist. Lucas No. L-

08-1420, 2009-Ohio-6340, ¶ 8-9. In determining whether the defendant met the definition of a

“supplier” as defined by R.C. 2307.71, the Sixth District held that

        no evidence was presented in the proceeding below that [the defendant]
        conducted its business for the purpose of selling, distributing, leasing, preparing,
        blending, packaging, labeling or otherwise placing go-karts into the stream of
        commerce, or conducted its business for the purpose of installing, repairing or
        maintaining any aspect of go-karts. Rather, [the defendant] passed along the go-
        karts, and the cost of those vehicles, to the participants in the [go-kart race.]
         Accordingly, [the defendant] was not a supplier of go-karts as that term is used in
        Ohio’s Product Liability Act.

Id. at ¶ 24.

        {¶33} Although such cases are neither controlling nor directly on point, a review of case

law from other jurisdictions shows a disinclination to hold Amazon liable as a seller, distributor,
                                                  14


or supplier of the products offered for sale on the Amazon Site by third-party sellers. See Fox v.

Amazon.com, Inc., M.D.Tenn. No. 3:16-CV-03013, 2018 WL 2431628, *8 (May 30, 2018)

(concluding that Amazon was not a seller under the Tennessee Products Liability Act); Erie Ins.

Co. v. Amazon.com Inc., D.Md. No. CV 16-02679-RWT, 2018 WL 3046243, *3 (Jan. 22, 2018)

(holding that Amazon was not a seller under Maryland’s UCC); Oberdorf v. Amazon.com, Inc.,

295 F.Supp.3d 496, 499 (M.D.Pa. 2017) (declining to impose liability as a “seller” on Amazon

under Pennsylvania Strict Products Liability Law); Milo & Gabby LLC v. Amazon.com, Inc., 693

Fed.Appx. 879 (Fed.Cir.2017) (holding that Amazon was not the seller of a third-party product

under federal copyright law); McDonald v. LG Elecs. USA, Inc., 219 F.Supp.3d 533, 542 (D.Md.

2016) (holding that “Amazon’s role as the ‘platform’ for the third-party sales does not qualify it

as a merchant or a seller under Maryland’s UCC.”); Allstate New Jersey Ins. Co. v. Amazon.com,

Inc., D.N.J. No. CV 17-2738 (FLW) (LHG), 2018 WL 3546197, *10 (July 24, 2018) (holding

that where “Amazon facilitates rather than drives the sale” it does not act as a product seller

under New Jersey products liability law).

        {¶34} Stiner has not demonstrated that the trial court erred by looking to Inman to give

meaning to the phrase “otherwise participated” in the context of a supplier under R.C.

2307.71(A)15(a)(i). Inman, W.D.Pa. No. CV 11-666, 2011 WL 5829024. We observe no error

in the trial court’s consideration of the actions of the entity that chose the product to offer for sale

and then sourced, physically controlled, and fulfilled orders for that product, in contrast with the

role of the platform through which that entity chose to offer the product for sale. Based on this

Court’s review of the relevant case law, we conclude that the trial court did not err in its

interpretation and application of the law in this case.
                                                 15




   2. Absence of a dispute of fact

       {¶35} Stiner argues that issues of fact precluded the grant of summary judgment, and

that the trial court failed to construe the evidence in favor of Stiner as the non-moving party.

However, Stiner has not identified any factual dispute as to the specific actions Tenkoris and

Amazon each took with respect to the transaction that resulted in the sale of the pure caffeine

powder to K.K. Although Stiner asserts a “divergent view” of Amazon’s role in the transaction,

Stiner has not pointed to evidence, relevant to whether Amazon otherwise participated in placing

the caffeine powder in the stream of commerce, that the trial court failed to construe in its favor.

       {¶36} The evidence clearly demonstrates that Tenkoris made the decision to sell the

caffeine powder, engaged the services of Amazon in order to offer the product, procured the

materials, determined the terms of the sale, retained possession of the product at all times, and

ultimately fulfilled the order by packaging and shipping the product to K.K. There is nothing in

the record contradicting the evidence that Amazon provided a platform through which Tenkoris,

as a third-party seller, offered and sold products in an online marketplace. There is no dispute

that, as a part of its service, Amazon displayed the product listing to customers searching for

related products, notified the seller when a sale of the product was made, and captured payment

for the sale. Further, there is simply no evidence in the record to support Stiner’s claim that

Amazon took any action to lead K.K. to believe she was making the purchase from Amazon

rather than the seller, and no evidence that Amazon somehow falsely mislead K.K. to believe she

was purchasing a “safe” product when, as Stiner alleges, she was not. The evidence shows that

The Bulk Source was clearly identified as the seller of the product at all times relevant to K.K.’s

purchase of the caffeine powder.
                                                 16


       {¶37} Stiner has not shown any dispute of facts material to an essential element of the

claim. In the absence of a factual dispute as to the respective actions of Tenkoris and Amazon,

the issue to be determined is how those actions factor in to supplier liability under the applicable

products liability statutes. Stiner’s contention that Amazon is a supplier relies on allegations of

Amazon’s complicity in a scheme to market products to consumers, engender trust by implying

the ensured safety of the products, and, meanwhile, willfully disregard evidence of known

dangers. We are cognizant of the requirement that evidence be viewed in favor of Stiner as the

non-moving party. Grafton, 77 Ohio St.3d at 105. Nevertheless, the facts in evidence do not

support Stiner’s contention. Reasonable minds can come to but one conclusion when viewing

the evidence regarding Amazon’s role in this transaction; the evidence cannot support Stiner’s

claim that Amazon was a supplier of the caffeine powder. Based on the foregoing, we conclude

that the trial court did not err in interpreting the law and applying the law to the relevant facts to

determine that Amazon is not a “supplier” within the meaning of R.C.2307.71(A)(15).

   3. Stiner’s Public Policy Argument

       {¶38} Stiner cites to “Inman, Welch, and Friedland” to support the contention that

public policy dictates Amazon should be held liable as a supplier because doing so would

incentivize safety. See Inman, supra; Welch, supra; Samuel Friedland Family Enterprises v.

Amoroso, 630 So.2d 1067, 1068 (Fla.1994). Stiner’s public policy arguments fail under the facts

of this case because Stiner has not pointed to evidence to demonstrate that holding Amazon

liable would incentivize safety. The facts demonstrate that Amazon was not in a reasonable

position to safeguard against allowing this caffeine powder, as a potentially dangerous product,

to enter the stream of commerce. Amazon was not conducting business for the purpose of

selling caffeine powder and did not choose to offer the product for sale. Amazon merely
                                                 17


provided a service and platform for Tenkoris to offer and sell its product and, as part of this

service, Amazon displayed Tenkoris’s listing for caffeine powder to customers searching for

relevant products. Amazon had no role in procuring the caffeine powder from its manufacturer,

storing, packaging, or distributing the product. Tenkoris determined the sale price, provided all

product information for the listing, packaged and fulfilled all orders. Amazon lacked discretion

as to the product specifications or listing details, and exercised no control over the packaging or

fulfillment of orders.

       {¶39} Stiner has not presented a compelling basis for extending the definition of

“supplier” to subject a service provider such as Amazon to liability for its very limited role in the

sale of a product. Stiner has not identified any instances where a court has applied the law with

such an expansive interpretation of the definition of supplier that it could encompass imposing

liability on Amazon under facts similar to those at issue here. Upon the facts of this case, this

Court declines to expand, on the basis of public policy, the definition of “supplier” in R.C.

2307.71, to extend liability by shifting the burden to safeguard consumers against third-party

seller’s products to an enterprise such as Amazon.

   4. Conclusion

       {¶40} The trial court correctly concluded that Amazon met its burden to show the

absence of a genuine dispute as to Amazon’s role in this particular transaction. Furthermore,

Stiner has not directed this Court to any evidence in the record to establish an essential element

of Stiner’s products liability claims: that Amazon is a supplier. Despite Stiner’s claim that the

trial court failed to consider evidence, Stiner failed to point to any evidence to demonstrate that

Amazon “otherwise participated” in placing Tenkoris’s product into the stream of commerce.

This evidentiary failure renders immaterial any facts relating to other elements of these claims,
                                                18


and confirms the absence of any genuine issues of material fact. Consequently, this Court

concludes that the trial court did not err in granting summary judgment on the claims Stiner

presented in counts four through seven.

E. Claims under Ohio Food and Drug Safety Act

       {¶41} Stiner argues that the trial court erred by granting summary judgment on the

claims under the pure food and drug law. “The following acts and causing them are prohibited”

by R.C. 3715.52(A):

       (1) The manufacture, sale, or delivery, holding or offering for sale of any food,
       drug, device, or cosmetic that is adulterated or misbranded;

       (2) The adulteration or misbranding of any food, drug, device, or cosmetic;

       (3) The receipt in commerce of any food, drug, device, or cosmetic that is
       adulterated or misbranded, and the delivery or proffered delivery thereof for pay
       or otherwise;

       (4) The sale, delivery for sale, holding for sale, or offering for sale of any article
       in violation of section 3715.61 or 3715.65 of the Revised Code; * * *.


Additionally, “a dietary supplement is adulterated if it presents a significant or unreasonable risk

of illness or injury under the conditions of use recommended or suggested in its labeling or, if

there are no recommended or suggested conditions of use, under the ordinary conditions of use.”

R.C. 3715.83

       {¶42} Considering R.C. 3715.52, the trial court observed that the statute does not define

the terms “sale” or “offering for sale” as stated in R.C. 3715.52(A)(1). The court looked to

define the term “sale” and observed the following definition, which it attributes to Black’s Law

Dictionary (5th Ed.1979):

       A contract between two parties, called, respectively, the “seller” (or vendor) and
       the “buyer” (or purchaser), by which the former, in consideration of the payment
                                                19


       or promise of payment of a certain price in money, transfers to the latter the title
       and possession of the property.

The trial court determined, based on the previous discussion of the evidence, that Tenkoris, not

Amazon, was the seller of the caffeine powder. The court concluded that Amazon did not

manufacture, sell, deliver, or offer for sale the caffeine powder at issue as stated in R.C.

3715.52(A)(1).    Further, the trial court determined that R.C. 3715.52(A)(2) and (3) were

inapplicable because Amazon was never in a position to cause the adulteration or misbranding of

the product and had never been in possession or control of the caffeine powder.

       {¶43} The trial court stated that, despite the lack of a precise definition of “offering for

sale”, it is clear, when viewed from the perspective of which entity created the listing to sell the

product on Amazon’s Site, that the entity offering the caffeine powder for sale was Tenkoris, not

Amazon. The trial court reasoned that, while Amazon created a template for sellers to upload

products to sell in its marketplace, the seller provided the information to populate the fields.

Therefore, Tenkoris set the price, created the product description, and supplied the product

images and all other product information to generate the listing that constituted an offer for the

sale of the caffeine powder: an offer which K.K. accepted. Having concluded that Amazon met

its burden to show the absence of a genuine issue of material fact as to whether Amazon sold or

offered for sale the caffeine powder, the trial court further concluded that Stiner did not meet the

burden to show an issue of fact for trial. Accordingly, the trial court granted summary judgment

on Stiner’s claims under the Ohio Food and Drug Safety Act.

       {¶44} It is Stiner’s position that the parties presented “divergent accounts of Amazon’s

role” in the sale of the caffeine powder that caused Logan’s death, which created questions of

fact. Stiner also asserts that the trial court erroneously construed the facts in favor of Amazon

and applied an “overly restrictive construction of the key phrase * * * ‘offering for sale.’”
                                               20


However, Stiner’s argument actually aims to challenge the manner in which the trial court

approached its analysis, viewing the listing on Amazon’s site from the standpoint of which entity

created it.

        {¶45} In support of its argument, Stiner contends that Amazon’s actions could be

construed as an offer for sale. Stiner cites to an unreported federal court decision from the

Western District of Washington examining the definition of liability for an “offer to sell” under

35 U.S.C. 271(a) in the context of patent infringement. See Milo & Gabby, LLC v. Amazon.com,

Inc., W.D.Wash. No. C13-1932-RSM, 2015 WL 4394673 (July 16, 2015). In that case, the court

stated that “where an item is ‘sold’ by a third-party vendor and ‘fulfilled’ by Amazon,” the

actions of Amazon “could be regarded as an offer for sale for the reasons discussed in [MEMC

Electronic Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1376

(Fed.Cir.2005)]. (Emphasis added.) Id. at *14. The court in Milo & Gabby, concluded there

were issues as to who made the offer for sale. Id. The analysis in Milo & Gabby, and its

comparison to MEMC, involves a completely different statutory scheme and the court’s focus in

that case was based, at least in part, on the particular purpose behind the addition of the phrase

“offer to sell” in the Patent Act. Moreover, that court subsequently entered a judgment finding

that Amazon was not liable for offering to sell the product at issue because Amazon, through its

website, did not communicate or provide the description of the products, did not set the price or

quantities for the purchase of the products, and did not “communicate that it was willing to enter

into a bargain to sell the * * * products.” Milo & Gabby, LLC v. Amazon.com, 144 F.Supp.3d

1251, 1253 (W.D.Wash.2015).

        {¶46} We find Stiner’s argument for such a broad construction of the term “offer to sell”

unpersuasive.   It is true that R.C. 3715.52(A)(1) does not define “sell” or “offer to sell.”
                                                 21


However, where a term is not defined in a statute, we give the undefined term its plain

and ordinary meaning. Great Lakes Bar Control, Inc. v. Testa, Slip Opinion No. 2018-Ohio-

5207, ¶ 8. When interpreting the language of a statute, “‘[w]ords and phrases shall be read in

context and construed according to the rules of grammar and common usage.’” Id. quoting R.C.

1.42. “Thus, we must consider the ordinary meaning of [offer to sell] in the context of [actions

prohibited under Ohio’s Food and Drug Safety Act].” Id. at ¶ 10.

       {¶47} The trial court looked to Black’s Law Dictionary (5th Ed.1979) to define a sale in

contractual terms where a seller conveys title and possession of property to the buyer in

consideration for payment. Similarly, the most recent edition of Black’s Law Dictionary defines

“sale” as “[t]he transfer of property or title for a price. See UCC § 2-106(1).” Black’s Law

Dictionary (10th Ed.2014). It defines “offer” in relevant part as “[t]he act or an instance of

presenting something for acceptance * * *.” Id. Hence, an “offer to sell,” pursuant to its plain

and ordinary meaning in the context of R.C. 3715.52(A)(1), involves the act of presenting for

acceptance the transfer of title or of property consisting of “any food, drug, device, or cosmetic

that is adulterated or misbranded,” for a price. This definition is consistent with the trial court’s

analysis of the role Amazon played in the sale of the caffeine powder.

       {¶48} Additionally, Stiner urges that the trial court should have considered several

factors in determining Amazon’s status as an “offeror” of the product. This includes Stiner’s

contention that Amazon “promoted” the caffeine powder to K.K., “engendered her trust” in

Amazon, lead K.K. to believe she was “dealing” with Amazon, listed itself as a merchant on the

credit card statement, and profited from the sale.          As discussed above, Stiner has not

demonstrated that the facts of this case support the claim that Amazon actively sought to

promote the caffeine powder to K.K. as a “safe product” sold by Amazon. Regarding Stiner’s
                                                22


assertion that K.K.’s mother’s credit card statement reflected that Amazon processed the charge

to her account—an uncontested fact—Stiner failed to explain how a post-transaction statement

could have misled K.K. as to the identity of the seller. More significantly, Stiner has not

explained how Amazon processing the payment, or displaying the product listing—created by

Tenkoris—to customers searching for pre-workout products, could render Amazon liable for

selling or offering to sell Tenkoris’s caffeine powder.

       {¶49} Further, Stiner attempts to analogize the facts of this case to a scenario where a

drug store might offer this product for sale and direct a customer requesting post-workout

supplements to this caffeine powder. However, Stiner’s analogy disregards a crucial distinction

between the role of Amazon and that of a drug store. Whereas a store typically selects the

products it places on its shelf and offers them for sale, Amazon has only provided the forum or

marketplace which Tenkoris utilized to offer and sell its product. Tenkoris, not Amazon, chose

to offer this product and, as the trial court correctly recognized, Tenkoris determined the terms of

the sale and product description. Tenkoris provided the information which allowed potential

buyers to find the product, accept the offer, and purchase the caffeine powder product that

Tenkoris offered for sale.

       {¶50} The trial court concluded that Amazon met its burden to show the absence of a

genuine dispute as to Amazon’s liability for the sale of an allegedly adulterated product. Stiner

failed to meet the reciprocal burden under Civ.R. 56(E) to demonstrate the existence of a

material fact regarding an essential element: whether Amazon sold or offered to sell a product

prohibited by R.C. 3715.52(A)(1). Here again, we recognize that evidence must be viewed in

favor of Stiner as the non-moving party. See Grafton, 77 Ohio St.3d at 105. However, Stiner

has not demonstrated the existence of evidence sufficient to permit reasonable minds to reach
                                                  23


different conclusions on this essential element of the claim, and has not supported the contention

that the trial court failed to construe any relevant evidence in Stiner’s favor. Consequently, this

Court concludes that the trial court did not err in granting summary judgment on the claims

Stiner presented in counts one, two, and three.

F. Conclusion

       {¶51} Stiner’s assignments of error one, two, three, and four are overruled.

                                        Assignment of Error V

       In applying the Communications Decency Act, 47 U.S.C. §230(c), the trial
       court erred in: (1) finding that Stiner seeks to hold Amazon liable as the
       publisher of third-party information, rather than as the supplier of the
       caffeine powder; and (2) suggesting that, if it applies, the Communications
       Decency Act would provide immunity under the facts of this case.


       {¶52} Amazon presented the trial court with an argument in its defense claiming that the

Communications Decency Act (“CDA”), 47 U.S.C. 230, bars all of Stiner’s claims against

Amazon. Stiner disputed the applicability of this statute in this case. In its summary judgment

ruling, despite having already granted summary judgment on Stiner’s claims against Amazon,

the trial court concluded as follows:

       After reviewing cases from other jurisdictions that have considered an[d] applied
       section 230 [of the CDA] to cases similar to the case at hand, the court finds that
       to the extent that section 230 [of the CDA] is applicable to the instant case, the
       immunity provided thereunder would further support the finding already made by
       the court that Amazon is not a supplier or seller of the pure caffeine powder and
       that it cannot be held liable under the specific facts of this case.

       {¶53} Stiner contends the trial court erred in its interpretation of Stiner’s claims and in

its application of the CDA. In its statement, it appears that the trial court concluded that if this

section of the CDA is applicable, then it would support the conclusion made by the trial court

that Amazon is not liable as a supplier or seller. The trial court did not, however, actually make
                                                24


such a finding regarding applicability and, in any event, was not required to do so in light of the

fact that it granted summary judgment in favor of Amazon on all of Stiner’s claims. This Court

will not decide this issue in the first instance. Price v. Carter Lumber Co., 9th Dist. Summit No.

26243, 2012-Ohio-6109, ¶ 22 (“As this Court remains a reviewing court, we will not consider

the issues relevant to the motion for summary judgment in the first instance.”) However, in light

of our resolution of the first four assignments of error affirming the trial court’s grant of

summary judgment on all of Stiner’s claims against Amazon, we must conclude that the issue of

Amazon’s purported affirmative defense raised in Stiner’s fifth assignment of error is moot and

we decline to address it. See App.R. 12(A)(1)(c).

                                                III.

       {¶54} Stiner’s first, second, third, and fourth assignments of error are overruled. This

Court declines to address Stiner’s fifth assignment of error as it is moot. The judgment of the

Lorain County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                25


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

BRIAN K. BALSER, Attorney at Law, for Appellant.

PAUL GRIECO, JACK LANDSKRONER and EDWARD S. JERSE, Attorneys at Law, for
Appellant.

JOYCE D. ELEMAN, Attorney at Law, for Appellee.

TRACEY L. TURNBULL, Attorney at Law, for Appellee.

JULIE L. HUSSEY, Attorney at Law, for Appellee.

ERIC D. MILLER, Attorney at Law, for Appellee.
