DAIMLERCHRYSLER CORPORATION, Petitioner - Supreme Court ...

suffer tread separation” defect in Firestone tires, and reiterated the fundamental principle
that manifest injury is required for recovery under either a contract-based or tort-based
theory. See Bridgestone/Firestone, 288 F.3d at 1017. Plaintiffs, who, like plaintiffs here,
had not alleged any malfunction or other manifestation of a defect in their vehicles, had
tried to avoid this rule by “describ[ing] the[ir] injury as financial rather than physical and
seek[ing] to move the suit out of the tort domain and into that of. . . consumer fraud (on
the theory that selling products with undisclosed attributes, and thus worth less than
represented, is fraudulent).” Id. The court recognized the majority position on the matter
and the public policy reasons against allowing such cases, see infra, and noted that, “[als
a result, most states would not entertain the sort of theory that plaintiffs press.” Id.
Moreover, plaintiffs cannot dodge the fatal problem with their claims by alleging
that any individual plaintiff was injured because he or she ostensibly would have paid a
lower price if plaintiff knew of the alleged defects or because the value of the product has
“diminished” in an abstract sense (even if the plaintiff has not sold the product and
therefore cannot demonstrate any concrete loss). Znman, 121 S.W.3d at 876. Courts have
refused to permit such attempts to circumvent the injury requirement:
The point of the cases cited [I is that unless there is actually a
failure in product performance, there is no basis at all for
claiming that the plaintiff has been damaged in any way.
Mere suspicion of a lost bargain . . . will not support an
award of damages.
Jarman v. United Indus. Corp., 98 F. Supp. 2d 757, 768 (S.D. Miss. 2000) (emphasis
added) (rejecting argument of entitlement to recover the loss of the benefit of purchase
price for an allegedly defective pesticide in action involving, inter din, breach of
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