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April 2014 - Stomping Grounds

by Richard W. Millar, Jr.

I have written before of lawsuits about truth in advertising, i.e., whether Froot Loops contains real fruit (as opposed to, say, real froot) and whether Captain Crunch’s Crunch Berries are real berries. We have also all seen claims that certain products (think: McDonald’s coffee) should have warning labels despite the fact that the targeted products have inherent qualities that the supposedly unwarned buyer actually sought, i.e., coffee buyers expect that coffee will be hot.

The (un)natural result of these lawsuits is the penchant of manufacturers to put warning labels on virtually every product to cover every conceivable use, including those that are inconceivable because if there is any use that will be the subject of a lawsuit, it will be one that no one foresaw.

Some of these uses have given rise to the annually Internet circulated “Darwin Awards,” which are both entertaining and highly frightening in the sense that people like that walk among us. One of my personal favorites was the one about the woman who, while driving a motor home, put it on cruise control, got up and ventured back to get something to eat, only to be thoroughly surprised when it crashed into the nearest ditch.

But you would think shoes would not need warning labels. I mean they are special purpose products, right? Like walking or maybe running, but not much else.

Nike is a really big company and theoretically was started in a garage by a guy with some material and a waffle iron. Now it makes several billion dollars a year selling lots of things, but primarily shoes. It sells lots and lots of shoes. I recall recently reading of long lines and fist fights over a newly released version of Air Jordans. No one in my family ever thought of using any of our waffle irons to make shoes, or, for that matter, anything other than waffles, so my hat is off to Bill Bowerman.

I am reasonably sure that Nike, being a large company, has had its share of lawsuits on a whole host of subjects. But, I am going to go out on a limb and suggest that it has not been on the receiving end of many claims that its shoes are so dangerous they need warning labels.

That is, of course, until now.

Enter Mr. Sirgiorgiro Clardy who, since he has some time on his hands—actually about 100 years’ worth—has sued Nike for $100 million. Mr. Clardy, whatever else he may be, is not a piker.

Mr. Clardy also does not seem to be someone overly imbued with a sense of personal responsibility. It is not his fault he is serving a 100-year sentence; it is Nike’s.

So, you ask, just what was it that Nike did? The answer is not much except to make a pair of Air Jordans available for Mr. Clardy’s acquisition assuming, and I am not at all sure it’s a fair assumption, that he acquired them through normal retail channels. It is what Nike didn’t do that is the rub. It didn’t warn Mr. Clardy that the shoes, as opposed to his feet, were really, really dangerous. As in “dangerous weapons.”

Mr. Clardy has been described by The Oregonian as a “26-year-old Portland pimp.” According to reports, a jury in 2013 found him guilty of second-degree assault. Mr. Clardy, it seems, had used his Air Jordans to repeatedly stomp the face of a “john” who was trying to leave a Portland hotel without paying Mr. Clardy’s prostitute. (The jury also found him guilty of robbing the “john” and beating his eighteen-year-old prostitute, but that, under Mr. Clardy’s theory, would not have implicated Nike.)

Apparently, Mr. Clardy’s sentence was due, in part, to the jury’s classification of his shoes as dangerous weapons, which was the genesis of his handwritten complaint penned whilst residing in the Eastern Oregon Correctional Institution.

According to his complaint, Nike, its Chairman, and other executives failed to warn consumers (and potential stompers) that the shoes could be used as a weapon to cause serious injury. I suspect he’s got them there: they probably didn’t put a little warning under the “Swoosh.” In fact, I will go further and bet that none of the folks at Nike ever thought to put a warning on the shoes to tell people you could hurt someone by using Air Jordans to stomp on his face. And I suspect that even after being served with this lawsuit, they are not going to recall all Air Jordans to put such a warning on them, but who knows?

The one thing that is probably predictable is that some legislator will introduce “Clardy’s Law,” calling for an outright ban on all “assault shoes.”

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.

 
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