According to the version of the facts favoring Kesling, against whom summary judgment was granted, in late 2007 Hubler inspected a 1996 Mitsubishi Eclipse and accepted it as a trade-in, then advertised it as a “Sporty Car at a Great Value Price,” $2981. Kesling soon thereafter saw the ad and went to the dealership. She test drove the Eclipse and noticed trouble idling. She asked Hubler’s salesperson if there was anything wrong with the vehicle, and he responded that it had been “sitting for a while and probably just needed a tune-up.” She bought it for $2322.88. In 2009, she sued. In 2010, she obtained an inspection report noting that the Eclipse was covered in dust and had only been driven 44 miles since Kesling purchased it (based on a comparison of the sales report with the odometer). The inspector discovered numerous problems with the Eclipse, some of which could have caused the vehicle to catch on fire or lose steering control. The inspector’s opinion was that the car was unsafe to drive, and that many of the issues—including the safety problems—would have been “obvious to anyone who would have inspected or serviced the Eclipse at a dealership.”
The trial court granted summary judgment to Hubler, reasoning that there was no representation that the car was safe to drive. The Deceptive Consumer Sales Act prohibits representations that the subject of a consumer transaction has, among other things, “performance, characteristics, accessories, uses, or benefits it does not have which the supplier knows or should reasonably know it does not have”; the Act is to be liberally construed to protect consumers.
The court of appeals agreed that a trier of fact could reasonably infer from the “Sporty Car at a Great Value Price” that Hubler was implicitly representing that the vehicle was safe to operate. Under the statutes, misrepresentations can be implied, so long as the implication occurs orally, in writing, or by electronic communication.
Given the meanings of “value” and “sporty,” a finder of fact could reasonably determine that the ad “implied that the Eclipse was a good car for the price and thus, at a minimum, safe to operate. How else could it have ‘great value’ and be a ‘sporty car’?” The phrase went beyond “a bare ‘1996 Mitsubishi Eclipse for $2981’ and thus can be read to mean more.” On another aspect of her deception claim, the court commented, “[h]ad Hubler merely listed the vehicle’s specifications and features, Kesling likely would not have a viable case. … A fact-finder could reasonably conclude that [the tagline] is an indication that it is a good car for the price and that, at a minimum, it is safe to operate. A fact-finder could also reasonably conclude that a used vehicle being advertised for $2981 with numerous mechanical issues that could result in total loss of steering control or cause it to burst into flames while driving is not a good car for the price.” Comment: while “great” is generally puffery, there are situations where the claims are so out of whack with reality that courts are willing to find claims of this sort false. Dangerous items are more likely to fall into that category.
Hubler argued that the Act didn’t apply to nondisclosure. But it does apply to representations (including implied ones), so there was a jury issue. There was also enough evidence to go to a jury as to whether the Eclipse was safe to operate when Kesling bought it.
A dissent argued that “Sporty Car at a Great Value Price” didn’t convey anything at all about drivability or safety. “Sporty” just meant having a sports car style, and “Great Value Price” just meant “low relative to the vehicle’s market value.” (But what’s the market value of a car that might catch on fire while you drive it?) The dissent maintained that “this very generic advertising phrase is widely regarded as typical used-car-sales puffery that conveys virtually nothing about the particular vehicle to which it is attached,” and was also “devoid of content relative to the vehicle’s operating status.”