Negligent Misrepresentation -- Failure to Disclose

Under Washington State law, what are the elements to a claim of negligent misrepresentation based on a failure to disclose? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

RESTATEMENT (SECOND) OF TORTS

The Washington State Supreme Court reaffirmed its adoption of the definition of negligent misrepresentation set forth in the Restatement (Second) of Torts:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (Wash. 2002) (internal quotation marks and citations omitted) (emphasis added). Negligent misrepresentation may be based on either an affirmative misstatement or a failure to disclose; this article will address the latter of these two bases.

THE ELEMENTS: FAILURE TO DISCLOSE

In the case of a factual dispute as to whether the defendant’s nondisclosure was material to the plaintiff’s decision to complete the transaction; a plaintiff claiming negligent misrepresentation–based on a failure to disclose–typically must prove each of the following by clear, cogent, and convincing evidence:
  1. that the defendant had a duty to disclose to plaintiff the subject information;
  2. that the defendant did not disclose this information to the plaintiff;
  3. that the defendant was negligent in failing to disclose this information;
  4. that the disclosure of this information would have caused plaintiff to act differently;
  5. that plaintiff was damaged by the failure to disclose this information.
See 6A Wash.Prac., Wash. Pattern Jury Instr. Civ. WPI 165.02 (6th ed.). Please keep in mind that there are additional requirements within some of the elements presented above, but those more detailed requirements are beyond the scope of this article; this article is solely intended as a general presentation of legal theory.

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

–gw

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