"But He Told Me It Was Safe!": The Expanding Tort of Negligent Misrepresentation.

Alissa J. Strong

Abstract

When more information is available, everyone benefits. Rather than having to rediscover basic wisdom at each crossroad, people can learn from one another’s actions, inactions, failures and successes. However, the availability of shared information is deeply threatened by laws and judicial doctrines that favor blind reliance on advice and then encourage suits against faulty information providers, if, in following the advice, the listener is harmed. One such law is the doctrine of negligent misrepresentation leading to physical harm as codified in the Restatement (Second) of Torts Section 311. Because it is largely written in broad language, it has been applied with a variety of inconsistent and unjust results over the past hundred years.

Section 311 imposes duty on those who represent information to use reasonable care and compels liability when a negligent misrepresentation, reasonably or justifiably relied upon, results in the physical harm of another. Courts have generally required this duty for expert information providers and those who might benefit financially from the actions of the listener. But because the language of Section 311 does not require those limitations, in some areas, particularly in employment reference law, courts have imposed Section 311 duties upon unqualified or unreliable information sources, encouraging irresponsible actions on the part of information receivers, thus harming employees, employers and consumers alike.

If the trend continues, it may not be long before Section 311 will have an analogous stifling effect on information exchange outside the employment reference arena. This article addresses the ambiguities and inconsistencies in the application of Section 311 and recommends that courts adopt Section 311 only with proper guiding limitations articulated in their decisions. Such guidelines would help ensure that the competing interests of free information exchange, deterrence of negligent misrepresentation, and compensation of injured victims are adequately balanced.