13.7.4 Claim Elements.

• Jurisdiction: Arizona

13.7.4 Claim Elements. The elements of the private cause of action are a false promise or misrepresentation made in connection with the sale or advertisement of merchandise and the hearer’s consequent and proximate injury.¹³⁴ Damage or injury occurs when the consumer relies on the misrepresentation even though the reliance is not reasonable.¹³⁵ The intent to deceive is not required to prove a claim under the Act¹³⁶ and the actor need not have knowledge that the promise is false or misleading.¹³⁷ Rather, the hearer must only prove that the actor intended to make the false promise or misrepresentation (i.e., that it was made voluntarily).¹³⁸ Proving that the actor made a false promise or misrepresentation that is subject to the Act is prima facie evidence that the actor did so voluntarily.¹³⁹ The actor then bears the burden of producing sufficient evidence that he or she acted without such intent.¹⁴⁰

Plaintiffs must prove a Consumer Fraud Act violation by a preponderance of the evidence, as opposed to common law fraud, which plaintiffs must prove by clear and convincing evidence. ¹⁴¹ All told, a violation of Act is more easily shown than a common-law fraud claim. ¹⁴²

For example, in Dunlap v. Jimmy GMC of Tucson, Inc., the Dunlaps were interested in purchasing a “Dreamer Recreational Vehicle” and a “Husky Tow Vehicle.”¹⁴³ While driving past Jimmy Recreational Center (“Jimmy’s”), they noticed a Husky Tow Vehicle on display and stopped to speak with a sales representative.¹⁴⁴ The Dunlaps informed the salesman that they required a vehicle that could provide year-round permanent living quarters and that was well-insulated.¹⁴⁵ The salesman pointed out this feature in a brochure¾the Dunlaps determined that the Dreamer suited their needs, so they purchased both vehicles, although Jimmy’s had to order the Dreamer.¹⁴⁶

The Dunlaps inspected the Dreamer upon its arrival and immediately noticed several problems.¹⁴⁷ But Jimmy’s staff assured them that everything “w[ould] be taken care of,” so they accepted delivery of the Dreamer anyway.¹⁴⁸ Jimmy’s had also promised the Dunlaps that a factory representative would teach them how to use the Dreamer’s special features, but that never happened.¹⁴⁹ Shortly after delivery, the Dunlaps became aware of several more problems with both the Dreamer and the Husky.¹⁵⁰ Jimmy’s staff again assured them that Jimmy’s would fix the problems, but it never did.¹⁵¹

The Dunlaps ultimately sued Jimmy’s for consumer fraud, among other...