 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Westfield Ins. Co. v. Huls Am.6/9/1998
ntation;
"(3) that the plaintiff justifiably relied on that representation; and
"(4) that the plaintiffs reliance on the representation was the direct and proximate cause of the plaintiffs injuries." Gawloski v. Miller Brewing Co. (1994), 96 Ohio App.3d 160, 165, 644 N.E.2d 731, 734.
This court finds that the roof conformed to the representations made by appellee. The warranty did not represent the TROCAL roof as anything other than a roof that would remain watertight throughout the warranty, absent any defect. The warranty in question limits the warranty to the repair of the roof during the warranty period and states that the "'warranty is solely intended to cover any condition caused by defective TROCAL Brand material." Clearly, the possibility that the TROCAL roof could contain a defect is indicated by the warranty. Further, there is no reflection in the record that appellee represented the roof as one that would last for more than ten years. There is no indication that appellee misrepresented its TROCAL roof with regard to its properties, or that the roof failed to conform to the representations made. Also, as has been stated earlier, appellants have failed to demonstrate that their reliance on the representation was the direct and proximate cause of the Plaintiffs injuries. Appellants have, therefore, not shown that they have a sustainable claim of misrepresentation pursuant to R.C. 2307.77.
Misrepresentation or false representation is also an essential element of the tort of fraud. 50 Ohio Jurisprudence 3d (1984, Supp.1997) 376, Fraud and Deceit, Section 26. The elements of fraudulent misrepresentation are:
"`1. A false representation; actual or implied, or the concealment of a matter of fact, material to the transaction; made falsely.
"`2. Knowledge of the falsity--or statements made with such utter disregard and recklessness that knowledge is inferred.
"`3. Intent to mislead another into relying on the representation.
"`4. Reliance--with a right to rely.
"`5. Injury as a consequence of that reliance. All of these elements must be present if actionable fraud is to be found. The absence of one element is fatal to recovery.'" Manning v. Len Immke Buick (1971), 28 Ohio App.2d 203, 205, 57 O.O.2d 308, 309, 276 N.E.2d 253, 255, quoting Crabbe v. Freeman (M.C. 1959), 81 Ohio Law Abs. 65, 67, 160 N.E.2d 583, 585.
Similarly, the doctrine of "negligent misrepresentation provides a tort vehicle for recovery of economic damages that arise from the breach of a contractual duty, where information is negligently supplied for the guidance of others in their business transactions, and a foreseeable recipient of such information justifiably relies upon it" and suffers injury as a proximate cause of the negligent act. Wodek v. Brandt Constr., Inc. (Mar. 19, 1997), Medina App. No. 2578-M, unreported, 1997 WL 148055, citing DeCapua v. Lambacher (1995), 105 Ohio App.3d 203, 206, 663 N.E.2d 972, 974.
As has been stated above, there is no indication that appellee knowingly, or with reckless and utter disregard of the consequences, misrepresented its TROCAL roof with regard to its properties, or that appellee intended to mislead appellant by the representations made. Also, as has been stated earlier, appellants have failed to demonstrate that their reliance on the representation was the direct and proximate cause of the plaintiffs injuries. Appellants have, therefore, not shown that they have a sustainable claim of common-law misrepresentation.
This court therefore finds that the warranty did not fail in its essential purpose or that the appellee did not misrepresent the
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|