Tort of fraudulent misrepresentation

Reposted from DelCotto Law Group: Kentucky Law: Elements of Fraud Claims By: Jamie L. Harris, Esq.

"Kentucky law . . .  recognizes the tort of fraudulent misrepresentation. In Kentucky, fraud by misrepresentation comprises six elements:

(1) the defendant must have made a material misrepresentation;
(2) that was false;
(3) that the defendant knew was false, or made with reckless disregard for its truth;
(4) that was intended to induce the plaintiff to act, based on the misrepresentation;
(5) that the plaintiff reasonably relied; and
(6) that caused the plaintiff injury.

Flegles, Inc. v. TruServ Corp., 289 S.W.3d 544, 549 (Ky. 2009). To be actionable, a misrepresentation. . . must relate to a past or present material fact. A mere statement of opinion or prediction may not be the basis of an action. This means . . . that forward-looking opinions about investment prospects or future sales performance . . . generally cannot be the basis for a fraud claim.” Ibid. Nor does “sales talk or puffing which is universal and an expected practice . . . amount to actionable misrepresentation. This is certainly true where the parties deal at arm’s length and have equal means of information.” McHargue v. Fayette Coal & Feed Co.,283 S.W.2d 170, 172 (Ky. 1955) (internal quotation marks omitted). A caveat to the necessary elements under either a fraud by omission claim or a fraudulent misrepresentation claim is that “mere silence does not constitute fraud where it relates to facts open to common observation or discoverable by the exercise of ordinary diligence, or where means of information are as accessible to one party as to the other.” Bryant v. Troutman, 287 S.W.2d 918, 920–921 (Ky.1956).

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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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This is not legal advice and I am not a lawyer.