WPI 165.01 Negligent Misrepresentation—Affirmative Misstatement—Burden of Proof on the Issues
6A WAPRAC WPI 165.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 165.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XII. Fraud
Chapter 165. Negligent Misrepresentation
WPI 165.01 Negligent Misrepresentation—Affirmative Misstatement—Burden of Proof on the Issues
(Name of plaintiff)has the burden of proving by clear, cogent, and convincing evidence each of the following elements for the claim of negligent misrepresentation:
(1) that(name of defendant)supplied information for the guidance of others in their business transactions that was false;
(2) that(name of defendant)knew or should have known that the information was supplied to guide(name of plaintiff)in business transactions;
(3) that(name of defendant)was negligent in obtaining or communicating the false information;
(4) that(name of plaintiff)relied on the false information;
(5) that(name of plaintiff)'s reliance on the false information was reasonable; and
(6) that the false information proximately caused damages to(name of plaintiff).
If you find from your consideration of all the evidence that each of these elements has been proved, your verdict should be for(name of plaintiff)on this claim. On the other hand, if any of these elements has not been proved, your verdict should be for(name of defendant)on this claim.
NOTE ON USE
The instruction sets forth the elements of a claim for negligent misrepresentation. This instruction is to be used for claims that are based on an affirmative statement rather than on a failure to disclose information. For claims based on a failure to disclose information, use WPI 165.02 (Negligent Misrepresentation—Failure to Disclose Information—Burden of Proof on the Issues) instead of this instruction.
Use WPI 10.01 (Negligence—Adult—Definition), the applicable proximate cause instruction from WPI Chapter 15, and one of the two instructions that set forth the clear, cogent, and convincing standard of proof: WPI 165.05 (Negligent Misrepresentation—Clear, Cogent, And Convincing Evidence) or WPI 165.06 (Negligent Misrepresentation—Clear, Cogent, And Convincing Evidence—Combined With Preponderance of Evidence) with this instruction.
This instruction may need to be modified depending on the facts and issues in a particular trial. For example, the parties may dispute whether the defendant made the statement in question in the course of business, profession, or employment, or whether the alleged statement was in fact made, or whether it was false, or the like.
COMMENT
Source of instruction. Washington courts have adopted the standards for negligent misrepresentation from section 552 of the Restatement (Second) of Torts. Specialty Asphalt & Constr., LLC v. Lincoln Cnty., 191 Wn.2d 182, 421 P.3d 925 (2018); ESCA Corp. v. KPMG Peat Marwick, 135 Wn.2d 820, 826, 959 P.2d 651 (1998); Dewar v. Smith, 185 Wn. App. 544, 342 P.3d 328 (2015) (trial court erroneously imposed summary judgment when proximate cause element was disputed); Guarino v. Interactive Objects, Inc., 122 Wn.App. 95, 129–30, 86 P.3d 1175 (2004). Section 552(1) reads as follows:
Restatement (Second) of Torts § 552(1) (1977).
From these standards, Washington courts have developed the following elements for the cause of action:
- (1) the defendant supplied information for the guidance of others in their business transactions that was false,
- (2) the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions,
- (3) the defendant was negligent in obtaining or communicating the false information,
- (4) the plaintiff relied on the false information,
- (5) the plaintiff's reliance was reasonable, and
- (6) the false information proximately caused the plaintiff damages.
Specialty Asphalt, 191 Wn.2d 182; Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007); Austin v. Ettl, 171 Wn.App. 82, 286 P.3d 85 (2012); see also Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002); ESCA Corp., 135 Wn.2d at 827–28.
Reliance. Washington cases vary in their description of the requirement as to the plaintiff's reliance. In Ross, the court required that a plaintiff's reliance be “reasonable.” Ross, 162 Wn.2d at 499. Other opinions require that the reliance be “justifiable,” which is the term used in Restatement (Second) of Torts section 552. See, e.g., ESCA Corp., 135 Wn.2d at 826–31; Van Dinter v. Orr, 157 Wn.2d 329, 332–33, 138 P.3d 608 (2006). Washington cases appear to use the terms “reasonable” and “justifiable” interchangeably. See, e.g., Baik, 147 Wn.2d at 551 (defining “justifiable reliance” in this context as meaning “reliance [that] [is] reasonable under the surrounding circumstances”); ESCA Corp., 135 Wn.2d at 828 (same holding as in Baik). The WPI Committee has used the word “reasonable” to convey these concepts, as it is the easiest for jurors to understand.
If the plaintiff's reliance was negligent, comparative fault does not apply. For a discussion of comparative fault, see WPI 165.00 (Negligent Misrepresentation—Introduction).
Business transactions. Liability for negligent misrepresentation under Section 552 exists only when the defendant was acting in the course of a business transaction or otherwise had a pecuniary interest in the transaction. See Restatement (Second) of Torts § 552(1) cmts. c, d (1977). For further discussion, see WPI 165.00 (Negligent Misrepresentation—Introduction).
Duty to third parties. Under Section 552 of the Restatement, a defendant may owe a duty of care to avoid misstatements not only to the person who directly receives the defendant's statements, but also to certain third parties if the defendant knows or should know that the third party will rely upon the information. Restatement (Second) of Torts § 552 (1977). For example, in Schaaf v. Highfield, 127 Wn.2d 17, 21–27, 896 P.2d 665 (1995), the court held that a real property appraiser owed a duty of care to a prospective house buyer, even though the appraiser was hired by the lender and was not in privity with the buyer. Nonetheless, “only those in a limited class” are owed a duty of care, and whether or not the plaintiff qualifies is a question of law. Schaaf, 127 Wn.2d at 21–22, 26.
[Current as of February 2021.]
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