stating that the plaintiffs’ reliance was unreasonable, but then stating that the plaintiffs waived their right to pursue a contractual warranty claim by waiving their right to an inspection and proceeding with the purchase even though they knew of a potential defect
How later courts described this case
- stating that the plaintiffs’ reliance was unreasonable, but then stating that the plaintiffs waived their right to pursue a contractual warranty claim by waiving their right to an inspection and proceeding with the purchase even though they knew of a potential defect
- providing that all common law misrepresentation claims include as an element that the plaintiff believed the defendant’s misrepresentation was true and actually relied on it
- the elements of negligent misrepresentation are that the defendant made a representation of fact; that the representa- tion was untrue; that the defendant was negligent in making the representation; and that the plaintiff believed that the representation was true and relied on it
- upholding grant of summary judgment on claim for intentional misrepresentation when plaintiff could not show that reliance was justified
Written by the judges who cited it.
The opinion
KESSLER, J.
¶ 27. (dissenting). I respectfully dissent from the Majority's conclusion that, because of this court's recent decision in K & S Tool & Die Corp. v. Perfection Machinery Sales, Inc., 2006 WI App 148 , 295 Wis. 2d 298 , 720 N.W.2d 507 , summary judgment in favor of the defendants (the Rapkins) was inappropriate on the Wis. Stat. § 100.18 claim.
¶ 28. In concluding that K & S Tool & Die Corp. eliminates the question of the reasonableness of a buyer's reliance on a specific representation under Wis. *118 Stat. § 100.18 , see Majority at ¶ 24, the Majority ignores contrary language in that case:
[T]he unreasonableness of a purchaser's reliance on a representation may be relevant to whether the purchaser in fact relied, or... whether the purchaser would have "acted in its absence." That is, evidence that reliance would be unreasonable may lead a jury to conclude that the purchaser did not in fact rely on the representation but would have made the purchase without it.
K&S Tool & Die Corp., 720 N.W.2d 507, ¶ 45 (quoting WI JI — Civil 2418).
¶ 29. The Majority holds that the trial court was correct in concluding that as to each of the other claims asserted by the Malzewskis, their alleged reliance on the Rapkins' written statement 1 about water seepage in the basement was unreasonable. Because the Malzews-kis elected to close the transaction without exercising their right to an inspection of the property, which would have easily disclosed exactly the matter of which they now complain, I conclude that their unreasonable reliance on the Rapkins' Condition Report is also an appropriate basis upon which to sustain the trial court's grant of summary judgment dismissing the false advertising claim based on the language in K&S Tool & Die Corp. set forth above. Consequently, I would affirm the grant of summary judgment dismissing all claims.