I gave a bar review lecture on the law of Sales at Indiana University in Bloomington in the summer of 1972 (see “The Summer Bar Review Tours” post of June 15th). One of the recently-graduated students in attendance was Robert Zoss, and he and his wife Nina had been having problems with the new Corvette they’d purchased three months before. There were all sorts of things going wrong with this beautiful sports car, and the dealership in Bloomington from which they had purchased it couldn’t seem to fix anything so that it would stay fixed. In my bar review lecture I discussed the statutory doctrine of “revocation of acceptance,” which is used to get your money back when purchased goods have a substantial defect. Mr. Zoss promptly went home and told his wife that they were going down to the dealership the very next day and revoke their acceptance of the Corvette! They did that, handing over a written statement to that effect, but when the dealership owner saw it, he laughed at them. “We signed a contract, and you can’t get out of it on a whim,” seemed to be his attitude. The Zosses immediately contacted me in Indianapolis, where I was teaching, and asked me to represent them. After hearing the facts, I agreed, and we filed suit.
I’ve been telling my law students for decades that if they’re representing a client in a case where the law is clearly on the client’s side, but the equities lean heavily in the opposite direction, “You’re in trouble.” In this case, happily, I had both. Many people think that if it’s just your word against mine, no lawsuit is possible. That’s simply wrong. When there’s conflicting oral testimony we leave it up to the fact-finder (the jury, or the judge if no jury is empanelled) to decide who’s telling the truth and who’s not. This is a high hurdle for car dealers and insurance companies in legal disputes with consumers. In a lemon car case, for example, frequently the consumer plaintiff takes the witness stand and lists all the many wonderful promises the dealer’s salespeople made to him/her during negotiations, none of which, alas, proved to be true. The car dealer then takes the stand and is asked what was said to the plaintiff and the answer is usually “nothing except what’s in the written contract.” At the end of the trial the jury is asked which party they believe. Most jurors have been waiting all their life for this moment—they don’t even have to leave the jury box—they’re ready now!
The legal difficulty with the Zoss case was that the Corvette (similar to the one in the photo, but theirs had a red interior) didn’t have one big problem, but instead myriad little ones: the car alarm would go inappropriately, there was a red paint slash across the black dashboard which the dealership was never able to remove, the windshield wipers worked in any and all conditions except when it rained (you could spray the windshield with a hose and the wipers would happily flop back and forth, but they were completely defeated by the simplest shower), huge amounts of oil were consumed, the luggage rack that the Zosses requested had one leg that kept popping free no matter how often fixed, etc. There was a list of 27 such difficulties, leading to the car being in the shop for eleven weeks of the three months since its sale. The “revocation of acceptance” statute allows return of money only if there is a “substantial impairment” to the buyers, and none of these things, taken alone, met that standard. So I came up with two theories as to “substantial impairment”: (1) these defects had a cumulative effect, and eventually led to the whole camel sprawling splay-legged as the straws piled on, and (2) the constant failure of the dealership to repair these problems was itself a “substantial impairment.”
Prepping the Zosses as witnesses before the trial went smoothly. But Nina Zoss, a schoolteacher, was much worried about having to take the stand (unlike her lawyer-to-be husband). “I’ve never been a witness,” she told me. “What if I get upset and cry?” Since in this situation that’s every lawyer’s dream, I assured her that crying was forgivable. “But,” she added, “maybe instead I’ll get mad.” That too I approved. Genuine passion on the witness stand is almost never bad.
And that’s what happened. I put Robert Zoss on the witness stand at 9 a.m. and he detailed the problems with the car and was cross-examined until 1 p.m. Then Nina took the stand, and defense counsel kept badgering her with “What was so wrong with this car that you couldn’t drive it?” repeated in various ways until she suddenly exploded. “I don’t know if I can say this in a court of law,” she declared hotly, “but it was just a LEMON CAR!!! And things were always going wrong, and our friends were teasing us because here we went and bought this fancy sports car and then I had to shop for groceries on a bicycle or beg for rides to school or hitchhike, and we became depressed and even fought about it!” Counsel stepped back, wary of her temper and torrent of words, but he bravely tried one more time. “But what kept you from driving it?” At this glorious moment Nina tied both of our theories together beautifully: “It was always in the shop,” she replied.
I was delighted.
The dealership put on a few witnesses but there wasn’t much they could say. Their big witness was a G.M. expert, who had examined the car carefully and found nothing wrong with it. Though he testified at length, I asked him only one question on cross-examination. “Is it true you didn’t see the car until two weeks after my clients had returned it to the dealership?” “Yes.” “No further questions.”
The case was tried before the Honorable Douglas R. Bridges (without a jury), and he quickly handed down a written opinion adopting both of our theories: “substantial impairment” can arise either from cumulative defects and/or failure to repair. His well-written opinion was published, and, for you lawyers, is cited as Zoss v. Royal Chevrolet, Inc., 11 U.C.C. Rep. Serv. 527 (Ind. Super. 1972). The good judge gave the Zosses back all of their money, with interest, plus additional damages for sales tax, registration fees, interest on their credit union car loan, insurance, two speakers for the Corvette, lost pay, and $225.00 for unexplained “consequential damages” (mental anguish, perhaps?). Judge Bridges’ opinion with its “cumulative effect” test was subsequently adopted by various Supreme Courts around the country (Wisconsin, Mississippi, and others) and is now part of the large body of case law explaining the meaning of the “revocation of acceptance” statute.
By the time I left Indiana to move to Ohio State University, I’d accumulated plenty of “war stories” and no longer felt like a fraud. I’d been the sole attorney on thirty or more cases, about six of which went to trial and judgment. In one case I practiced with my wife Charleyne (another lemon car lawsuit, which we lost—very sad facts in that disaster), and after I came to Ohio, Dad and I tried a case in southern Indiana together (one centered on a lemon motorbike). But enough for now. Those are stories for later.
“A Guide to the Best of My Blog,” April 29, 2013