Avola had over three decades of experience in carpentry,
including more than two decades as a member of the local carpenters’
union. He’d worked with different types
of wood, and testified that one would only use “soft woods” in construction,
for which “you hit the nail once and then you take your finger away and you
hammer the rest of it in,” unlike the hard woods used in cabinetry. He recognized the risk of ricochet but stated
that he never encountered that with soft woods.
Avola took a part-time job as a sales associate at a Home
Depot store, and was assigned to the plumbing department. He only “knew enough about plumbing to tell
[the customers] what they needed,” and other employees were also assigned to
work in departments for which they had little-to-no prior experience. While Home Depot offered department-specific
classes, and LP SmartSide might well have been discussed in the lumber
department, employees could only “answer with a basic knowledge of the
products” in their own departments.
LP SmartSide is a type of “composite wood” siding product
created by combining wood byproducts and chemicals. LP’s website claims that
“LP SmartSide products work and cut just like traditional wood, taking nails
and screws with ease.” Home Depot also
sells vinyl and actual wood siding (plywood).
While he was still working at Home Depot, he bought siding for a shed in
his backyard. He’d used the plywood
siding sold by Home Depot before and was about to buy it again, but a sales
associate suggested that he try SmartSide, stating that it “nails just like
wood,” “works as easy as traditional wood siding,” and could be installed the
same way as the plywood. Avola bought
it. Avola did not visit LP’s website or view a printed ad at that time.
When he started installing SmartSide, he used the same
procedures he’d used for wood. Though
the installation instructions—which didn’t come with the product—required
two-inch nails, Avola used one-and-a-half-inch nails, which he believed was
appropriate under carpenter’s union rules given the thickness of the
siding. Even in the beginning, the nails
refused to stay in place after he hammered them once. As he was nailing the last panel, a nail
ricocheted into his left eye.
The court first evaluated Avola’s claim for breach of
express warranty. New York requires (i) a material statement amounting to a
warranty; (ii) the buyer’s reliance on this warranty as a basis for the
contract with his immediate seller; (iii) the breach of this warranty; and (iv)
injury to the buyer caused by the breach. A buyer can bring a claim against a
manufacturer based on the manufacturer’s ads upon which the buyer relied when
contracting with the sellers. False
advertising in NY is similar: (i) a material statement (ii) in
consumer-directed advertisements, (iii) upon which the buyer actually relies,
where this statement (iv) turns out to be false or misleading and (v) causes
the buyer’s injury.
Defendants argued that the LP ad and the Home Depot
associate’s statements were mere puffery that no reasonable jury could find
material. The court disagreed. It
identified (1) vagueness, (2) subjectivity, and (3) inability to influence
buyers’ expectations as key factors in distinguishing puffery from non-puffery.
Vagueness means failing to describe a specific
characteristic of the product. General descriptions—e.g.,
high-speed internet service as the “fastest, easiest way to get online”; a
truck as the “most dependable, long-lasting”; or an insurance policy as putting
policyholders “in Good Hands”—can be puffery. But here, the statements were far more
specific. They described key characteristics of SmartSide: “its wood-like
working quality and ability to take nails.”
Subjectivity means an inability to measure disputed
statements on an objective basis, “such as by reference to clinical studies or
comparison with the product’s competitors.”
Statements that a stereo system reflects the “most life-like
reproduction of orchestral and vocal sounds” or that a chain of hotels
maintains “standards proud enough to bear [the founder’s] name” are
subjective. Here, the statements were
quantifiable, in that they equated SmartSide with traditional wood siding
products, providing a measurable benchmark.
By contrast, LP’s statement that SmartSide products “also deliver the
beautiful, authentic look of real wood for unbeatable curb appeal” was
subjective puffery. The ad used the
subjective term “ease,” but also compared SmartSide with traditional
wood—considering the ad claim in its entirety, it was not puffery.
Inability to influence means that “the disputed statements
are made by all of the product’s competitors, or these statements cannot mean
everything that they suggest.” A claim that
a sports beverage will “Upgrade your game” “is plainly an exaggeration, because
no buyer truly believes” that it would improve athletic abilities. And “consumers know that vehicles that are
‘rock-solid’ will be dented by an impact that would not dent a rock.” But here, the statements could reasonably
influence buyers and shape their expectations.
A claim that SmartSide acted like “traditional wood” siding was not so
overblown that the buyers ought to have known better. “Nor should the buyers expect to hear these
statements from the manufacturers of other siding products that do not act like
‘traditional wood’ siding products but have other distinguishing
characteristics.”
(I don’t really understand what the court is saying about
“everyone does it”—if everyone in the market made a verifiably false claim, why
would that be any defense at all?
Suppose every supplement maker using a particular ingredient falsely
claims that the ingredient promotes weight loss. If the statement is specific and objective,
its market prevalance should have no weight at all—if anything, it might be
more credible if everyone’s saying it.
And the court implicitly acknowledges this by defining the relevant
class as a subset of siding products, since a false claim that “everybody” in a
product category makes might not change resource allocation within the
category, but can clearly shift consumption of that entire category
upwards. Also this seems to be an
empirical inquiry—is everyone doing it?—that the court answers in a normative
way—consumers wouldn’t expect everyone to do it—but that’s the least of the
issues.)
Anyway, defendants failed to show that the statements at
issue were puffery as a matter of law.
The court turned next to reliance: Avola didn’t see the
website before buying SmartSide. The
court disagreed that this was fatal, in that the jury could find that Avola
relied on the ad as recited by the Home Depot sales associate. Defendants argued that Avola’s testimony
about what the sales associate said was inadmissible hearsay. Not so: Avola testified to the making of, not
the truth of, the statements. As long as
Avola’s testimony sufficiently showed that the sales associate’s statements
recited LP’s ad, even if only orally and not in writing, that would allow a finding
of reliance. Here, there was enough
evidence to survive summary judgment. A
reasonable jury could find that the claims that SmartSide “nails just like
wood” and “works as easy as traditional wood siding” parroted LP’s claims.
However, the claims against Home Depot failed, because the
jury couldn’t reasonably find that Avola relied on any warranties or
advertising by Home Depot. Just
“passively” reciting statements in the ads wouldn’t do it; that just leads to
reliance for the claims against LP.
Without more, the sole basis for the bargain would be LP’s statements.
Assuming the Home Depot not only recited LP’s claims, but
separately represented that SmartSide could be installed the same way as
plywood siding with which Avola was familiar, the claim still failed because
the sales associate wasn’t acting as Home Depot’s agent for this purpose. (OK, I’m not deeply familiar with the law of
agency, but how can an employee who touts a product sold by the employer, for
the purpose for which it’s sold (albeit perhaps not giving proper installation
instructions), possibly not be an agent?)
The court held that Home Depot never told its employees that
they had actual authority to make statements promising or promoting the
performance of the products sold. To the
contrary, Home Depot hired employees “without requiring any experience in home
improvement or construction, and assigned them to departments for which they
had no prior experience”; “only offered them basic classes on the products in
their department, but did not require that they read about or train in the use
of these products”; and expected them to work the entire store, not just their
department. (I can see this language appearing in comparative ads, the way Domino’s slammed Papa John’s
for the latter’s successful puffery defense in court.) “No employee would have
thought that Home Depot vested them with actual authority to make actionable
representations about any products.”
And Avola, an employee himself, shouldn’t have believed that
Home Depot vested another employee with apparent authority to tout
products. “In light of what he knew as
an employee, Avola had no basis for believing that Home Depot authorized the
sales associate’s Related Statements about LP SmartSide.” (So Avola’s specific situation is important
here. I find it hard to believe that a
consumer who wasn’t also a Home Depot employee should be deemed to know that
Home Depot employees don’t know what they’re saying.)
Tidying up, the court also held that Avola wasn’t required
to submit expert testimony on SmartSide’s failure to comport with the
advertising, or on causation of Avola’s injury. A jury may find causation “from
its consideration of the characteristics of the [product] and plaintiff’s
description of how the accident happened.” Defendants argued that expert testimony was
needed to define what “traditional wood” siding products are, in order to
compare them with SmartSide. But the
evidence that SmartSide didn’t perform like any wood used in construction was
sufficient to raise triable issues about falsity even without a specific
definition. The court noted that “the
meaning of phrases in advertising should not rely too much on the technical
meanings that experts might provide; instead, ‘[t]he important criterion is the
net impression which the advertisement is likely to make upon the general
populace,’ not ‘the wise and the worldly’ universe of experts.”
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