Watkins

DISCUSSION

24 The parties agree Louisiana law governs the claim. Under Louisiana law, “a non- 25 manufacturing seller of a defective product is not responsible for damages in tort absent a showing 26 that he knew or should have known the product was defective and failed to declare it.” Jackson v. 27 Sears Authorized Retail Dealer Store, 36,166 (La. App. 2 Cir. 6/12/02), 821 So. 2d 590, 593 (2002). “Nor is a non-manufacturing seller required to inspect the product prior to sale to determine the possibility of inherent vices or defects.” Id. As Plaintiffs allege Amazon.com and Whole Foods were the retail sellers, and not also the manufacturers, of the allegedly defective baby food, they could not have breached a duty to Plaintiffs’ son as a matter of law. So, the negligence claim fails. Plaintiffs respond they are pursuing a theory of “negligent performance of undertaking” in accordance with Section 324A of the Restatement (Second) of Torts. See Restatement (Second) of Torts § 324A (Am Law Inst. 1965). Under that rule:

One who undertakes, gratuitously or for consideration, to render services to another which he should…