You know the old saying: if you don’t like the weather, just wait five minutes. And then sue a company with a lot of money—the inclemency must be their fault.
Consider the case of Ned Comer et al. (plaintiffs) versus Murphy Oil USA et al. (defendants), now making its way through the United States Court of Appeal, Fifth Circuit (PDF).
See, old Ned was a sittin’ down on the Mississippi bayou, mindin’ his own bidness, when along came hurricane Katrina. Whap! Knocked old Ned right on his keister. “Ouch!” he said, rubbing the only part of his body that had ever been any use to him.
Boy, was Ned unhappy. And so were his neighbors. They got together and reasoned thusly: since no hurricane had ever hit us before, no hurricane could have hit us without that something nefarious occurred.
Now, nefarious doesn’t just happen on its own; it needs agents, minions, evil lackeys. Who might they be? How about that global warming everybody was chattering about? Wasn’t that supposed to create killer ‘canes? Yes, sir, it was.
But what made global warming? Why, carbon dioxide. And who made that nasty gas? Of course! Oil companies!
The neighbors cheered.
“Those oil companies sure are a nuisance,” said one. “They knew their product would cause old Ned grief.
“They were negligent,” said another.
“They’s trespassin’ on my property!” shouted a third.
“I think you mean they engaged in an ‘unjust enrichment’ of your land,” said number four, who knew a lot of big words because he had actually started high school (in Arkansas).
“It’s a civil conspiracy, that’s what it is,” said five.
Old Ned smiled on his gabbling crowd and announced, “They said oil was good for us. They lied! We’ll get ’em for fraudulent misrepresentation.”
Once more, a lusty cheer rolled across the swamp.
Thus encouraged, the gang lit up their torches and headed down to Sorry Hollow, where Junior Beauford’s boy Dewey was fighting a gator over ownership of a dead possum. Dewey had had a case of beer fall on his head when he was just a tyke, and was never quite right after that.
“Dewey! Say, Dewey! C’mere, boy!” shouted Ned. When Dewey clambered out of the muck, Ned said, “Dewey, we need you to sue Murphy Oil et al. for us.”
Later, a stack of papers landed on the local judge’s desk. The judge saw that it was the work of Dewey, and he figured Dewey was either drunk or going through one of his phases, so he tossed the papers in the ashcan and forgot all about them.
But the judge’s secretary was keen on recycling, so she retrieved the papers and returned them to Dewey, who, poor soul, reasoned the judge wanted him to appeal.
Now, them appellate judges—Davis, Stewart, and Dennis—are some good old boys. Here’s what they said about Dewey’s brief:
The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses [sic] that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.
The Murphy clan, previously silent, cried foul. They said, “Didn’t old Ned and his neighbors, and even you judges drive down here propelled by some of our oil? Nobody forced you. If you hated oil so much, you could have rode your horse, or even walked. Start thinking straight.”
These words caused Stewart and Dennis to squirm, but not Davis, who still smarted from a vivid memory of having his mouth washed out with Murphy’s Oil Soap. He figured that some mystery chemical in that soap was what was responsible for his occasional hallucinations and dementia.
Stewart and Davis knew Murphy was right, but they also had to get along with the ornery Davis, so they figured they would compromise. They tossed out the civil conspiracy and fraudulent misrepresentation claims. They also got rid of that unjust enrichment bit, mostly because nobody knew what it meant.
But they said to old Ned, “Go ahead and sue for nuisance, trespass, and negligence. Those other things, though are non-justiciable.” Dewey explained to old Ned that “non-justiciable” was a word they had to use to make the whole thing legal.
And legal it was. Even as I write this, lawyers everywhere are licking their chops, delighted to discover a new area to sue about. Tobacco suits, after all, had grown pretty stale.
But who will win: Old Ned or Murphy? Stick around!
Update Link fixed. Thanks DAV.