Wis JI-Civil 2401

To constitute intentional misrepresentation, there are five elements 1 which must be

proved by (plaintiff).

First, that (defendant) made the representation of fact. Representations of fact do not

have to be in writing or by word of mouth, but may be by acts of conduct on the part of

(defendant) [,or even by silence if there is a duty to speak. A duty to speak may arise when

information is asked for; or where the circumstances would call for a response in order that

the parties may be on equal footing; or where there is a relationship of trust or confidence

between the parties2].

An expression of opinion which either indicates some doubt as to the speaker’s belief

in the existence of a state of fact, or merely expresses the speaker’s judgment on some

matter, such as quality, value, authenticity and the like, does not constitute a representation

of fact.3 However, a statement of opinion, which carries with it an implied assertion that

the speaker knows that the facts exist which support the speaker’s opinion, may, in your

discretion, be determined by you to be a representation of fact.4 In making your

determination, you may consider the form and manner of expression5 [or the disparity of

knowledge between the parties of the underlying facts;6 or the existence of a trust or

confidence relationship between the parties7].

Second, that the representation of fact was untrue.

Third, that such untrue representation was made by (defendant) knowing the

representation was untrue or recklessly without caring whether it was true or false.

Representations made by a person who knows that he or she has no sufficient basis of

information to justify them are reckless.8

Fourth, that (defendant) made the representation with intent to deceive and induce

(plaintiff) to act upon it to (plaintiff)’s damage.9

Fifth, that (plaintiff) believed such representation to be true and relied on it.10 [It is not

necessary that the representation made be of such character as would influence the conduct

of a person of ordinary intelligence and prudence.11] Representations are to be tested by

their actual influence on the person to whom they are made [not upon the probable effect

of such representation upon some other person12]. In determining whether (plaintiff)

actually relied upon the representation, the test is whether (plaintiff) would have acted in

the absence of the representation.13 It is not necessary that you find that such reliance was

the sole and only motive inducing (plaintiff) to enter into the transaction. If the

representation was relied upon and constitute a material inducement, that is sufficient.14

If you find, however, that (plaintiff) or the person to whom the representation was

made knew it to be untrue, then there can be no justifiable reliance as no one has the right

to rely upon representation that he or she knew was untrue.15

Nor can there be justifiable reliance if (plaintiff) relied on a representation which

(plaintiff) should have recognized as preposterous or which is shown by facts within (his)

(her) easy observation and (his) (her) capacity to understand to be obviously untrue.16

(Plaintiff) is not required before relying upon the representation of fact to make an

independent investigation.17

SPECIAL VERDICT

Question 1: Did (defendant) make the representation of fact as to ?

(State the ultimate facts alleged to be relied on.)

Answer: ____________

Yes or No

Question 2: If you answer “yes” to question 1, answer this question:

Was the representation untrue?

Answer: ____________

Yes or No

Question 3: If you answered “yes” to both questions 1 and 2, answer this question:

Did (defendant) make the representation knowing it was untrue or

recklessly without caring whether it was true or untrue?

Answer: ____________

Yes or No

Question 4: If you answered “yes” to question 3, answer this question:

Did (defendant) make the representation with the intent to deceive and

induce (plaintiff) to act upon it?

Answer: ____________

Yes or No

Question 5: If you answered all the preceding questions “yes,” answer this

question:

Did (plaintiff) believe such representation to be true and justifiably

rely on it to (his) (her) financial damage?

Answer: ____________

Yes or No

Question 6: If you answered all the preceding questions “yes,” answer this

question:

What sum of money will fairly and reasonably compensate (plaintiff)

for (his) (her) financial damage?

Answer: $ _____________