Friday Frivolity: Wile E. Coyote’s Claims Against Acme Co.
One score and sixteen years ago, Ian Frazier wrote a Shouts and Murmurs column for The New Yorker imagining Wile E. Coyote suing the Acme Corporation for injuries suffered using its products. Someone purchased the film rights, and now, after having sat on a shelf for decades, the movie has been made. Stephen Kurutz provides an account of the path to production in The New York Times. I have a collection of Looney Tunes lapel pins, and it seems that many of my favorite characters show up, at least for cameos.
But going back to the source material, Ian Frazier provides the opening statement of Mr. Coyote’s attorney. The facts as alleged are that Mr. Coyote was injured on eighty-five occasions while using various Acme products. The products included:
- One rocket sled,
- One pair rocket skates,
- One “Little Giant” firecracker,
- One self-guided aerial bomb,
- One spherical bomb,
- One pair spring-powered shoes,
Mr. Frazier made an interesting choice having Mr. Coyote sue under 15 U.S.C. § 2072(a), which provides in relevant part:
Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission, may sue any person who knowingly (including willfully) violated any such rule or order in any district court of the United States in the district in which the defendant resides or is found or has an agent, shall recover damages sustained and may, if the court determines it to be in the interest of justice, recover the costs of suit, including reasonable attorneys’ fees (determined in accordance with section 2060(f) of this title and reasonable expert witnesses’ fees: Provided, That the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and cost . . .
I don’t know why Mr. Coyote would not have opted for ordinary products liability under state law and breach of warranty under Article 2 of the UCC. He alleges manufacturing defects, which I think (not being a torts guy) gets you to products liability, and improper cautionary labeling, which could give rise to a claim under express warranties (UCC § 2-313). For what it’s worth, the products as described likely would not pass without objection among the buying public and so there would also be breaches of the implied warranty of merchantability under § 2-314.
But the items mentioned seem to be inherently dangerous if not ultra-hazardous, and so I would think we might be in the realm of strict liability. From that perspective state tort law has decided advantages over the federal statute, which requires that the seller engage in a “knowing violation of a consumer product safety rule.” Proving that level of scienter would take some doing. I can see the value of putting the claim in the complaint. If you survive a motion to dismiss, the threat of invasive discovery ought to be enough to force a generous settlement, and in that respect the federal statute’s fee-shifting provision is also helpful. Still, I think the main claims are going to lie in breach of warranty and strict liability.
In addition, the federal statute requires that the matter in controversy exceed $10,000, and Mr. Coyote purports to seek a total recovery of $38,750,000, including actual damages, general damages, punitive damages, and attorneys’ fees. Mr. Coyote does allege extensive injuries, but his attorney’s account provides no information as to costs incurred. Moreover, Mr. Coyote’s injuries did not prevent him from returning to work immediately. His attorney attempts to sidestep his reality, which may doom his claim, by explaining that “Mr. Coyote was nevertheless obliged to support himself.” Unfortunately, his attorney prefaced that remark by noting that Mr. Coyote was “hampered” by his injuries. I don’t know if “hampered” gets you to $10,000, especially when your next move is to strap on a pair of rocket skates. Indeed, there is extensive video evidence suggesting that Mr. Coyote suffered no injuries that he could not walk off, returning almost instantly to his chosen occupation, predation.
What would really make this movie worth the price of admission for me would be if Mr. Coyote alleged a breach of the implied warranty of fitness for a particular purpose. I would love to see a judge, played by Professor Bob Brain, go to town, grilling Mr. Coyote’s lawyer on how his particular purpose in using a self-guided aerial bomb differed from its ordinary purpose, on his reliance on the seller’s expertise when Mr. Coyote habitually ordered from the Acme catalogue, and why any alleged implied warranties of fitness were not duplicative of his express warranty claims. That might be just the anvil we need to drop on this useless cause of action, which was clearly invented for law-exam hypos and not for the real world.