Section 11.13 Fraudulent Misrepresentation

• Library: Settling Cases 2014

The tort of fraudulent misrepresentation consists of:

(1) a representation;

(2) its falsity;

(3) its materiality;

(4) the speaker’s knowledge of its falsity or ignorance of its truth;

(5) the speaker’s intent that [the representation] should be acted on by the person and in the manner reasonably contemplated;

(6) the hearer’s ignorance of the falsity of the representation;

(7) the hearer’s reliance on the representation being true;

(8) the hearer’s right to rely thereon; and

(9) the hearer’s consequent and proximately caused injury.

Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 765 (Mo. banc 2007). To establish fraud, it is not always essential that a false and fraudulent misrepresentation be affirmatively made. Concealment of a fact that one has a duty to disclose properly serves as a substitute element for a false and fraudulent misrepresentation. Id.; see also Harris v. Mid-W. Donation, LLC, 365 S.W.3d 274 (Mo. App. E.D. 2012). “A duty to speak arises where one party has superior knowledge or information that is not reasonably available to the other.” Hess, 220 S.W.3d at 765 (citing Andes v. Albano, 853 S.W.2d 936 (Mo. banc 1993)). In a lawsuit seeking damages based on fraud...