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Negligent Misrepresentation Defenses

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Negligent Misrepresentation Defenses

When people think of misrepresentation, they often think of fraudulent misrepresentation. However, there are two kinds of misrepresentation that are possible: fraudulent and negligent. Fraudulent misrepresentation is an intentional tort that involves making a false statement of fact to lure someone into signing a contract. Since negligent misrepresentation is based on negligence and not fraud, not all of the same defenses can be used for both kinds of misrepresentation.

What Is Negligent Misrepresentation?

This type of negligence involves making a false statement of during a course of employment or business dealing to induce another party into making a contract. The person is considered careless because they make the statement without knowing if it is true or false.
For example, a salesman claims a cell phone that they are trying to sell has specific features without knowing if it does or not. He would be liable for committing negligent misrepresentation if the plaintiff was harmed by the misleading fact.

What Are Some Defenses to Negligent Misrepresentation?

A defendant can use these general defenses to a negligent misrepresentation claim:

  • Contributory Negligence: A defendant may claim the plaintiff contributed to the negligent misrepresentation and the harm suffered that they suffered as a result. For instance, the plaintiff in the cell phone example may have been given the opportunity to learn whether the representation was false before agreeing to purchase the cell phone, but chose to not take advantage of the opportunity. In jurisdictions with contributory negligence defenses, a plaintiff, if proven, would be barred from recovery any money.
  • Comparative Negligence: A defendant may claim the plaintiff was partially or totally at fault for the negligent misrepresentation. If successful, the plaintiff’s negligence would be assessed by percentage. For example, if the plaintiff was 30 percent negligent, their award would be reduced by that percentage.
  • Lack of a Duty of Care: Just like with all forms of negligence, a defendant may not always owe a duty of care to a plaintiff. In this context, a defendant is not always obligated to make an extra effort to ensure that the representations that they are making to the plaintiff are absolutely true. This is especially true where the defendant is merely engaged in puffery.

Should I Discuss Negligent Misrepresentation with a Lawyer?

Yes, as negligent misrepresentation is a very serious claim that can have a lasting impact on your professional reputation. If you are being sued for misrepresentation, talk to a business lawyer about the defenses available to you.

Photo of page author Taelonnda Sewell

, LegalMatch Legal Writer

Last Modified: 11-24-2015 06:32 PM PST

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