Get ready to kiss lipstick samples goodbye! A California woman sued Sephora in Los Angeles last week. She allegedly got herpes from a lipstick sample. No word yet on what color she used. I like a good berry color myself.
The complaint has four charges. Let’s walk through them, shall we?
Number 1: strict liability. Under strict liability, a plaintiff can collect damages even if the defendant was not negligent or at fault for the plaintiff’s injury. The plaintiff wants strict liability to apply in this case. If it does, Sephora must pay up even if it nothing could have been done to stop the plaintiff from getting herpes.
Number 2: negligence. In negligence claims, the plaintiff must prove four elements. (1) The defendant owed the plaintiff a duty of care. (2) The defendant breached that duty of care. (3) The plaintiff was injured. (4) The defendant’s breach caused the plaintiff’s injury.
Negligence is probably the plaintiff’s best argument. If Sephora provides free samples, it has a duty to provide germ-free samples. Or, it at least has a duty to warn its customers that the samples might have germs. There were no warnings. The samples may have had herpes germs.
Hi, Duty. Meet Breach.
Numbers 3 and 4: intentional/negligent infliction of emotional distress. AKA IIED and NIED
Emotional distress is a catchall phrase for various emotional reactions. Embarrassment qualifies. Nervousness qualifies. Anxiety, depression, and loss of enjoyment all qualify.
However, to qualify as intentional infliction, a defendant must intend to stress the plaintiff out. If I threatened to pants my friend in front of potential employers, she could make a reasonable argument for IIED. The more emotional distress she can show, more damages she collects.
Negligent infliction of emotional distress applies when defendants act recklessly. This applies when a defendant knows or should know, that her actions could cause emotional distress.
I don’t know how the plaintiff proves these claims against Sephora.
What about the plaintiff?
What responsibility should the plaintiff take for getting herpes? She chose to use the sample. She knew other people used the sample. Is it really Sephora’s fault that she got herpes?
Further, how can anyone be certain that herpes originated from a lipstick sample at Sephora? Did the plaintiff kiss someone with herpes around the time of infection? Did she share a drink with someone that has herpes? Maybe she borrowed her friend’s chapstick and she has herpes.
This lawsuit is a reach. It’s a Stretch Armstrong style reach. And just in case you didn’t know that hiding herpes is a thing, check out a video here.
Also, don’t use make-up counter samples. You might walk away with the gift that keeps on giving.