Wis JI-Civil 2403

To constitute negligent misrepresentation in this case, there are four elements 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 or 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 parties].

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

speaker knows that the facts exist which support (his) (her) opinion, may in your discretion,

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

may consider the form and manner of expression [or the disparity of knowledge between

the parties of the underlying facts; or the existence of a trust or confidence relationship

between the parties].

Second, that the representation of fact was untrue.

Third, that (defendant) was negligent in making this representation. The word

“negligence” has the same meaning as the phrase, “failure to exercise ordinary care.” A

person fails to exercise ordinary care when, without intending to do any wrong, (he) (she)

makes a misrepresentation under circumstances in which a person of ordinary intelligence

and prudence ought reasonably to foresee that such misrepresentation will subject the

interests of another person to an unreasonable risk of damage. [A person in a particular

business or profession owes a duty to exercise the care that is usually exercised by persons

of ordinary intelligence and prudence engaged in a like kind of business or profession.]

The making of a misrepresentation, even though made with an honest belief in its truth,

is negligence if there was a lack of reasonable care in ascertaining the facts [or if it was

made without the skill or competence required in a particular business or profession].

Fourth, (plaintiff) believed the representation to be true and relied on the representation

to (his) (her) damage. The question is whether the representation actually misled (plaintiff)

and materially affected (his) (her) conduct. In determining whether (plaintiff) actually

relied upon the representation, the test is whether (he) (she) would have acted in the absence

of the representation. It is not necessary that you find that such reliance was the sole and

only motive inducing (him) (her) to enter into the transaction. If the representation was

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

If you are called upon to answer the question as to whether (plaintiff) was negligent,

then the question presented to you is whether (plaintiff) failed to exercise that care and

caution which a person of ordinary intelligence and prudence usually exercised in a like or

similar situation. In other words, (plaintiff) was negligent if (he) (she) failed to exercise

that degree of care which the great mass of mankind ordinarily exercises under the same

or similar circumstances to ascertain the truth or untruth of the representation. [You are

cautioned that the definition of “negligence” is different than the instruction on reliance

previously given to you. The test here is the effect of the representation upon a person of

ordinary intelligence and prudence and not the test of how the representation affected

(plaintiff).]

The last question is the comparative negligence question. By your answer to this

question you will determine how much or to what extent each party is to blame for the

damages, if any, that (plaintiff) suffered. You will weigh the respective contributions of

these parties to such damages, if any, and considering the conduct of the parties named in

the question, considered as a whole, determine whether one made the same or a larger

contribution than the other, and, if so, to that extent it exceeds that of the other. (Plaintiff)

has the burden of proving the percentage attributable to (defendant). (Defendant) has the

burden of proving the percentage attributable to (plaintiff).

SUGGESTED SPECIAL VERDICTS

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 answered “yes” to question 1, then answer this question:

Was the representation untrue?

ANSWER:_____________

Yes or No

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

question:

Was (defendant) negligent in making the representation?

ANSWER:_____________

Yes or No

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

Did (plaintiff) believe the representation to be true and rely on it?

ANSWER:_____________

Yes or No

Question 5: If you answered “yes” to question 4, then answer this question:

Was (plaintiff) negligent in relying upon the representation?

ANSWER:______________

Yes or No

Question 6: If you answered “yes” to both questions 3 and 5, then answer this

question:

Assuming the total negligence which caused the injury to be 100%,

what percentage of the negligence do you attribute to:

(a) (Defendant)?

ANSWER: %

(b) (Plaintiff)?

ANSWER: %

100 %

Question 7: If you answered “yes” to question 4, then answer this question:

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

for (his) (her) out-of-pocket loss?

ANSWER: $ _____________

COMBINED VERDICT: DECEIT OR NEGLIGENCE

Question 1: Did (defendant) make an untrue representation of fact, knowing it was

untrue, or recklessly without caring whether it was untrue, and with

the intent to deceive and induce (plaintiff) to act upon it?

ANSWER:_____________

Yes or No

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

[In view of all of the evidence, including (plaintiff)’s education,

background, and right to rely without independent investigation,] Did

(plaintiff) believe the representation to be true and justifiably rely on

it to (his) (her) financial damage?

ANSWER:______________

Yes or No

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

question:

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

for (his) (her) financial damages?

ANSWER: $ ___________

If you answered “no” to either or both questions 1 and 2, then answer

the following questions:

Question 4: Did (defendant) negligently make an untrue representation of fact to

(plaintiff)?

ANSWER:_____________

Yes or No

Question 5: If you answered “yes” to question 4, then answer this question:

Did (plaintiff) believe the representation to be true and rely on it to

(his) (her) financial damage?

ANSWER:_____________

Yes or No

Question 6: If you answered “yes” to questions 4 and 5, then answer this question:

Was (plaintiff) negligent in relying upon the representation?

ANSWER:______________

Yes or No

Question 7: If you answered “yes” to questions 4 and 6, then answer this question:

Assuming the total negligence which caused the injury to be 100%,

what percentage of the negligence do you attribute to:

(a) (Defendant)?

ANSWER: %

(b) (Plaintiff)?

ANSWER: %

100 %

Question 8: What sum of money would fairly and reasonably compensate

(plaintiff) for (his) (her) financial damage?

ANSWER:$____________

COMBINED VERDICT: STRICT RESPONSIBILITY OR NEGLIGENCE

Question 1: Did (defendant) make an untrue representation of fact as based on

(his) (her) own personal knowledge, or in circumstances in which (he)

(she) necessarily ought to have known the facts?

ANSWER:_______________

Yes or No

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

[In view of all of the evidence, including (plaintiff)’s education,

background, and right to rely without independent investigation,] Did

(plaintiff) believe the representation to be true and justifiably rely on

it to (his) (her) financial damage?

ANSWER:______________

Yes or No

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

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

for (his) (her) financial damage?

ANSWER: $ ___________

If you answered “no” to either or both questions 1 and 2, then answer

the following questions:

Question 4: Did (defendant) negligently make an untrue representation of fact to

the (plaintiff)?

ANSWER:______________

Yes or No

Question 5: If you answered “yes” to question 4, then answer this question:

Did (plaintiff) believe the representation to be true and rely on it to

(his) (her) financial damage?

ANSWER:_____________

Yes or No

Question 6: If you answered “yes” to questions 4 and 5, then answer this question:

Was (plaintiff) negligent in relying upon the representation?

ANSWER:______________

Yes or No

Question 7: If you answered “yes” to questions 4 and 6, then answer this question:

Assuming the total negligence which caused the injury to be 100%,

what percentage of the negligence do you attribute to:

(a) (Defendant)?

ANSWER: %

(b) (Plaintiff)?

ANSWER: %

100 %

Question 8: What sum of money would fairly and reasonably compensate

(plaintiff) for (his) (her) out-of-pocket loss?

ANSWER: $___________