When the Internet Comes For You …

First State Chevrolet in Delaware sold John and Debbie Hooper a new 2o12 Camaro ZL1. After they had put 10k miles on the car, there was a paint issue that still had not been resolved. Tom dropped the car off at the dealership for a bit of a respray and, when he returned, the car looked like this:

original

Seems an employee of the dealership came in on a Sunday when it was closed and took the car out for a little joy ride. And wrapped it around a phone pole. Totaled.

Now the Hoopers are not just any buyers. John has written several books about Camaros. And they traded a 2011 Camaro and sold a ’69 SS to get this car.

Because the employee was not on the clock, the dealership initially didn’t want to do anything for the couple. Lefty and I will tell you that there are a lot of states where this is a difficult case to make. When an employee goes on a joy ride without being directed to do so by the dealer, it’s tough to make a negligence case.

The dealership tried offering them a car, same make and model, with 13,000 miles, an unwanted sunroof, and that needed new tires. Remember the totaled car had 10k on the clock. But instead of offering to give them the car, the dealership proposed to sell them the car and throw in 5 grand for pain and suffering and oil changes or whatever.

Debbie checked CarFax and found that the car was a 2 owner vehicle, not a single owner car as claimed by the dealership, and that it had been in an accident. Really?

Now I’d like to think, if put in this position, that I as the owner of the dealership would head over to the Hooper’s house with an order form, let them check any boxes they wanted, and arrange for the new car to serve as substitute collateral for the loan that the Hoopers are still paying. For a car they can’t use. I’d like to think I’d do that, and that I’d eat the rest myself.

But no. The dealership instead stood firm.

Now let me add – this isn’t just a car. Gearheads like me affix special significance to our dream cars. Taking delivery from new, making sure all the parts match, working on it, taking it to car shows, watching the car age, and driving it are all important aspects of ownership. And this isn’t your 25 grand secretary-spec special. This is a $60,000, 580 horsepower, 6 speed dream machine. You don’t just drive this car. You live it.

Enter the internet.

Hooper posted his story on the camaro5 forum. Then Jalopnik picked it up. Autoblog weighed in. Just look at the comments.

And then it started getting really bad for First State. They had to take their Facebook page down due to the vitriol. Their Google rating went south. A fake Facebook page popped up. Their salespeople were mocked on their YouTube channel.

What solution is there other than to, at the very least, make these people whole?

33 Comments

But but Freemarket?

I would have tried to make amends, too. Even offer up the former employee’s head on a stick (and it would definitely be former employee.)

@ManchuCandidate: They fired the guy (the internet found him very fast, on Facebook, and he deleted almost everything). This dealership may have let it go on too long … past fixing. The guy is an automotive writer! These are Chevy people! Fucking idiots.

I only play a lawyer in comments, but…

If I leave a car at the dealer to be fixed, isn’t the dealer liable for the car’s condition while in its possession? Why would it matter whether the employee was on the clock during the joyride? What if somebody stole the car from the dealer garage? What if the dealership burned down?

@nojo: I am a lawyer, and there are a lot of cases where employee uses employer’s truck off the clock, t-bones a minivan full of children, and the employer gets off b/c they did not authorize the use. If the dealer had said “go test drive this thing to see if the new paint works” then yes. Fair or unfair, that’s how the law has developed.

@blogenfreude: Yes, but that’s employer’s truck, and you’re talking about damage to a third party from unauthorized use.

This is customer’s car, entrusted to dealer. Surely dealer now has responsibility — and commercial liability insurance — for the car’s condition?

To take your example: Joyriding employee plows customer’s Camero into a minivan. The minivan’s owners and passengers are still SOL, since the joyride was unauthorized. But the customer? I left the car in the dealer’s care, after all.

Unless you’re saying the law treats the dealer like a parking garage, where there’s liability-denying fine print on the automated ticket. But even there, the parking lot is unattended, except for the tollbooths, so there’s little responsibility to presume.

Closer example: What’s the liability for valet parking?

@nojo: young paduan … how can I say this? Courts in this country tilt towards business. A negligence case is possible against the dealership if they were wrong in not locking up the keys, but if they can show that this is not ordinary practice at other dealerships, they will win. It is state by state, and most states (to my memory) make it very difficult to win when an employee goes on what is blithely called a “misadventure.” Serious.

@blogenfreude: but if they can show that this is not ordinary practice at other dealerships

That’s pretty much the answer I was looking for.

Although you know how to make something ordinary practice? Win a lawsuit.

@nojo: the parable of the sponge board. Lawsuits against doctors for leaving sponges inside patients were effectively over once the sponge board was invented. You put the sponges back on the board to account for them … I think a lawyer invented it.

@blogenfreude: My personal example is hanging metal plates with slots that measure the loop for restroom towel rolls, because some kid strangled himself on one.

It’s “personal” because I was flipping pizzas when those were installed, and the WARNING printed on the metal plate amused the hell out of me.

But the sponge board is actually useful. Score one for the Plaintiffs Bar.

Word on the blogs now is that GM is now involved. Gotta keep that brand all sparkly clean.

@nojo: But about bailment?

From the Free Online Law Dictionary:

A bailment for the mutual benefit of the parties is created when there is an exchange of performances between the parties. A bailment for the repair of an item is a bailment for mutual benefit when the bailee receives a fee in exchange for his or her work.

In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property. A bailee who fails to do so may be held liable for any damages incurred from his or her Negligence.

Of course State law can alter common law bailment, but that is where I would start with this.

On the “frolic and detour” negligence exception, it would be a pretty extreme application to apply it here. A business owner has a duty to prevent employees from misbehaving at the job site. The employee taking the car was conversion (even if only for a joyride), and the owner had a duty to prevent it.

P.S. Bailment was a big part of my Property midyear.

@blogenfreude: Course and scope of employment. Was the employee’s action authorized? No? No vicarious liability, unless the employee is a cop and raped or beat someone even while off duty. Courts have found employer liability under tort claims acts in such cases (a) because cops are just that way or (b) beating people is part of the job.

I have a case right now involving a teacher who sexually harassed another teacher. Is there employer liability in that case? We’ll have to get past the statute of limitations and subject matter jurisdictions issues first.

@redmanlaw: depends on the state, but yes. Dealership likely wins. But if you’re a car dealer serving an enthusiast community, you need to think before you make the buyer litigate.

@blogenfreude and nojo: “Sponge board” sounds so naughty.

@Walking Still: Haiii, stranger!

In the local rag a couple of weeks back this story gave the impression that the dealer was friends with the Hoopers or at least had some association with them for a number of years. The other thing is this he is a small time used car dealer that has been around for a while, maybe 20+ years. As far as I know he does not sell new anything. I do not see where GM can hold any sway in this other than to find a replacement in kind.

A side note, the local shop I use does not like to have any customer cars left on his property unless it is in the garage on the lift with the tires off.

/When the Internet Comes For You …/

Just checked Mr. ¡A!’s browser history since he’s “working” from home today. Yup–all porn. Unless the construction industry has a sudden, pressing interest in Burly Pole Riders (and who doesn’t, really?).

And now please enjoy one of the most beautiful photos of Seattle ever. Really!

/Today in Wingnut Head Asplosions:

U. S. District Judge Terence Kern has ruled Oklahoma’s ban on same-sex marriage unconstitutional, noting in his 68-page opinion, “Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country.”
Oh, SNAP!

@Mistress Cynica: I thought of you the instant I saw the breaking news. Okla-fucking-homa.

Oregon has no fucking excuse…Utah and now Oklahoma are ahead of Orygun??

@SanFranLefty: I believe there’s a ballot initiative underway to repeal the ban, a vote of the people being considered preferable to a court ruling. I have to admit, I’ve been too swamped to keep up.

Sort of a solution – Berger Chevy in Michigan, paired with GM, is going to provide a new car. Still, the Hoopers have to pay cash money American for their new car. The First State Chevy dealership … did they throw in anything? They should pay. Bigtime.

@blogenfreude: Well, if Berger wanted to destroy their repair business with the car enthusiast community, mission accomplished. I can’t imagine anyone who knows about this would drop off their car for so much as an oil change.

@Mistress Cynica: Berger are the good guys – 1st State Chevy in DE = bad guys.

@DElurker: Mrs RML’s dad (not stepdad) ran a gas station and garage in a little New Mexico town back in the early 70s. They would often use customer’s cars when theirs was not working or if they didn’t have one.

Another guy I know worked at a place we’ll call “Axis Powers Motors.” He would routinely take a customer’s car, often a Mercedes or BMW, for long weekend road trips “to test drive the vehicle.” It was the 80s, cocaine, etc.

@blogenfreude: I was seriously mistaken after reading the local paper. I thought that the dealer was First State Motors. 1st State Chevy is a whole different story ball of wax. Their franchise with GM could be in danger, besides the lawsuit.

@redmanlaw: I remember the practice with the local grease monkeys in the early 70s. Every filling station had a garage. The mechanic would take the car home overnight to make sure everything was okay. Sometimes even the beaters like an old LeMans I had.

Damn, the Professor is gone. Why he never invented a coconut shotgun to kill Gilligan is one of life’s great mysteries.

@ Manchu,
coconut shotgun
You just won the contest to name Gwenyth Paltrow’$ next baby, congrats.

@redmanlaw: I love how pretty much all 80s bad behavior can be explained by cocaine and met with knowing nods.

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