991 F. Supp. 2d 381
E.D.N.Y2013Background
- Plaintiff Anthony Avola, an experienced carpenter, bought LP SmartSide siding at a Home Depot store after a sales associate told him it “nails just like wood” and “works as easy as traditional wood siding.”
- Louisiana-Pacific (manufacturer) advertised on its website that “LP SmartSide products work and cut just like traditional wood, taking nails and screws with ease.”
- While installing the product with a hammer and shorter nails than the product instructions recommended, a nail ricocheted and struck Avola in the eye, causing injury.
- Plaintiffs sued asserting multiple claims; at summary judgment they pursued breach of express warranty and false advertising based on the manufacturer’s advertisement and the sales associate’s oral statements.
- The court granted summary judgment dismissing design/manufacturing/neglect/failure-to-warn/breach-of-implied-warranty claims and all claims against Home Depot, but denied summary judgment as to breach of express warranty, false advertising, and loss of consortium claims against Louisiana-Pacific.
- On reconsideration, the court denied Louisiana-Pacific’s motion to reconsider, leaving the same claims against the manufacturer for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the manufacturer’s website statement and sales associate’s recitation are actionable (material) vs. puffery | Avola contends the statements are specific, measurable comparisons to "traditional wood" and therefore material | Louisiana-Pacific argues the statements are mere puffery (vague/subjective) and not actionable as a matter of law | Court: Statements are specific enough (compare to benchmark "traditional wood") to present fact issues for a jury; not puffery as a matter of law |
| Whether Avola relied on the manufacturer’s advertisement for claims against Louisiana-Pacific when he did not personally view the website | Avola says he relied on the sales associate’s recitation of the manufacturer’s advertisement at the point of sale | Louisiana-Pacific contends Avola did not see the ad and any hearsay of the associate is inadmissible | Court: Sales associate’s recital is admissible non-hearsay as to the fact it was uttered; jury could find Avola relied on the recitation — reliance triable against Louisiana-Pacific |
| Whether Avola relied on Home Depot (entitling suit against the retailer) | Plaintiffs argue the sales associate’s statements created warranties/advertising by Home Depot | Home Depot argues it merely repeated the manufacturer’s statements and employees lacked actual or apparent authority to bind Home Depot | Court: No reasonable jury could find Avola relied on Home Depot or that employee had authority; claims against Home Depot dismissed |
| Whether expert testimony was required to prove breach/falsity and causation of injury | Plaintiffs argue their lay testimony about product performance and accident circumstances suffices to create triable issues without experts | Defendants assert technical comparisons and causation require expert proof | Court: Expert testimony not required here; Avola’s experience and description of product behavior create triable issues on breach/falsity and causation against Louisiana-Pacific |
Key Cases Cited
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (Sup. Ct. 1970) (summary judgment standard and view facts in plaintiff’s favor)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct. 1986) (summary judgment and reasonable jury standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct. 1986) (movant’s initial burden on summary judgment)
- Vulcan Metals Co. v. Simmons Mfg. Co., 248 F. 853 (2d Cir. 1918) (commercial puffery concept)
- Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144 (2d Cir. 2007) (discussing puffery in false advertising context)
- Pelman v. McDonald’s Corp., 396 F.3d 508 (2d Cir. 2005) (elements of New York false advertising claims and reliance)
- Maurizio v. Goldsmith, 230 F.3d 518 (2d Cir. 2000) (consumer-directed, material, misleading statements element in NY false advertising)
- Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (N.Y. Ct. App. 1983) (expert testimony not always required; jury may infer causation from product characteristics and accident description)
- Bose Corp. v. Linear Design Labs, Inc., 467 F.2d 304 (2d Cir. 1972) (examples of subjective advertising claims as puffery)