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Rathgeber v. James Hemenway8/15/2001
998). To establish that claim, plaintiffs were required to prove: (1) a representation by defendants, (2) in the course of defendants' business, (3) that Zobel had qualifications (4) that, in fact, Zobel did not have, see ORS 646.608(1)(e), when (5) defendants knew or should have known that the misrepresentation would constitute a violation of the UTPA. See ORS 646.605(10).
At the threshold, defendants contend that the disclosure form prescribed in ORS 696.830 is not an actionable representation, because it "is nothing more than a recital of defendants' statutory fiduciary duties." We agree. ORS 646.612(1) provides that ORS 646.607 and ORS 646.608 do not apply to " onduct in compliance with * * * a statute administered by a federal, state or local government agency." ORS 696.820 provides that " n agent shall personally provide each seller and each buyer in a real property transaction with a copy of the disclosure form set forth in ORS 696.830." (Emphasis added.) ORS 696.820 is administered by the Oregon Real Estate Commissioner, who is authorized to discipline any real estate licensee who has " isregarded or violated any provisions of * * * ORS 696.800 to 696.855 * * *." ORS 696.301(5). Because ORS 696.820 required Zobel to provide the disclosure form to plaintiffs, the contents of the disclosure form do not constitute an actionable representation under ORS 646.608(1)(e). Although plaintiffs rely primarily on the disclosure form, they also argue that Zobel represented expressly that he was experienced with rural properties and represented impliedly that he would act competently on plaintiffs' behalf. We summarily reject plaintiffs' express misrepresentation argument, because they have identified no evidence suggesting that Zobel was not experienced with rural properties.
Plaintiffs' implied representation theory requires more extended consideration. ORS 646.608(2) provides that an actionable representation under ORS 646.608(1) "may be any manifestation of any assertion by words or conduct, including, but not limited to, a failure to disclose a fact." Neither this court nor the Supreme Court has upheld a claim under the UTPA solely on the basis of an implied representation. Assuming, however, that an implied representation could serve as the sole basis for a UTPA claim, plaintiffs did not establish that any such representation was false.
To prove Zobel's incompetence, plaintiffs offered evidence only that he acted negligently in the transaction at issue in this case. However, "incompetent" and "negligent" are not synonyms. See Port of Portland v. Brady-Hamilton, 62 Or App 92, 97, 659 P2d 995 (1983) (holding that, where a witness testified about a crane operator's competence, cross-examination regarding a history of complaints about the operator's performance could have no bearing on whether the crane operator was negligent in his actual operation of the crane during the incident). "Incompetent" describes an actor lacking "sufficient aptitude, skill, strength, or knowledge." See Websters Third New Int'l Dictionary, 463 (unabridged ed 1993) (defining "competent"). "Negligent" describes conduct that creates an unreasonable risk of a foreseeable harm. Slogowski v. Lyness, 324 Or 436, 441, 927 P2d 587 (1996). It is thus possible for an actor to possess sufficient aptitude, skill, strength, and knowledge to avoid errors, and nevertheless to act in a manner that creates an unreasonable risk of a foreseeable harm. Accordingly, the actor could act negligently but nevertheless be competent.
Because plaintiffs offered no evidence of any acts by Zobel other than in the course of the transaction at issue in this case, there is no evidence that, in offering Zobel's services to plaintiff
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