WPI 165.05 Negligent Misrepresentation—Clear, Cogent, and Convincing Evidence
6A WAPRAC WPI 165.05Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 165.05 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XII. Fraud
Chapter 165. Negligent Misrepresentation
WPI 165.05 Negligent Misrepresentation—Clear, Cogent, and Convincing Evidence
Proof by clear, cogent, and convincing evidence means that the element must be proved by evidence that carries greater weight and is more convincing than a preponderance of evidence. Clear, cogent, and convincing evidence exists when occurrence of the element has been shown by the evidence to be highly probable. However, it does not mean that the element must be proved by evidence that is convincing beyond a reasonable doubt.
A “preponderance of the evidence” means that you must be persuaded, considering all the evidence in the case, that a proposition is more probably true than not true. “Preponderance of the evidence” is defined here solely to aid you in understanding the meaning of “clear, cogent, and convincing.”
NOTE ON USE
Use this instruction when the jury has not been given WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence). If there is an alternative claim involving preponderance of the evidence so that WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence) is also given, use WPI 165.06 (Negligent Misrepresentation—Clear, Cogent, and Convincing Evidence—Combined with Preponderance of Evidence) instead of this instruction.
COMMENT
Negligent misrepresentation must be proved by clear, cogent, and convincing evidence. Specialty Asphalt & Constr., LLC v. Lincoln Cnty., 191 Wn.2d 182, 421 P.3d 925 (2018); Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007); Van Dinter v. Orr, 157 Wn.2d 329, 333, 138 P.3d 608 (2006); DeWolf & Allen, 16A Washington Practice, Tort Law & Practice § 19:12 (5th ed.).
“Clear, cogent, and convincing evidence” denotes a quantum of evidence or degree of proof greater than a mere preponderance, but something less than proof beyond a reasonable doubt. In re Deming, 108 Wn.2d 82, 109–10, 736 P.2d 639 (1987); Tiger Oil Corp. v. Yakima Cnty., 158 Wn.App. 553, 562, 242 P.3d 936 (2010). A failure to advise the jury that “clear, cogent, and convincing” proof is a higher degree of proof than a “preponderance of evidence” constitutes reversible error. Holmes v. Raffo, 60 Wn.2d 421, 425–26, 374 P.2d 536 (1962).
The high probability standard is now well established as a means for defining clear, cogent, and convincing evidence. See, e.g., Portmann v. Herard, 2 Wn.App.2d 452, 409 P.3d 1199 (2018); In re J.A.F., 168 Wn.App. 653, 667, 278 P.3d 673 (2012); Wright v. Dave Johnson Ins. Inc., 167 Wn.App. 758, 774, 275 P.3d 339 (2012); see generally DeWolf & Allen, 16A Washington Practice, Tort Law & Practice § 19:27 (5th ed.); Tegland, 5 Washington Practice, Evidence Law and Practice § 301.3 (6th ed.).
[Current as of February 2021.]
Westlaw. © 2022 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
| End of Document |