Day on Torts
By John Day

Be Careful What You Say!
The recent decision in Bennett v. Trevecca Nazarene College[1] reminds us that the tort of negligent misrepresentation needs to be on the checklist of every lawyer who is exploring what causes of action may exist when there has been any communication between an aggrieved party and a potential defendant.

True, the Bennett case arises from a personal injury, indeed a horrible personal injury, and thus the case may not seem important to those who do commercial litigation. But the negligence complained of by the plaintiff was not just that the defendant failed to maintain this widget or did not warn about that danger. No, Mr. Bennett also alleged that he was incorrectly told that the equipment he was being asked to work on was low-voltage equipment when it fact it was high-voltage equipment.[2] The difference between the two is shocking, and Mr. Bennett and his co-worker were injured as a result.

That Tennessee Supreme Court found that the college gratuitously assumed the duty to speak accurately about the voltage when it volunteered to supply that information to Mr. Bennett and his co-worker. Relying on the recent case of Biscan v. Brown, Justice Clark, writing for a unanimous court, said that there was “a duty of reasonable care on a premises owner to provide accurate information to an independent contractor if the owner provides specific information germane to the repair after engaging the contractor.”[3]

The court could have stopped there, remanded the case for trial on the merits, and moved on to the next case. Instead, the court went on to also impose a duty under Section 552 of the Restatement (Second) of Torts. Subsection (1) of that section states as follows:

One who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Here is the court’s application of Section 552 to the facts:

Applying the plaintiffs’ allegations to the framework of section 552 supports the potential imposition of a duty in this case. ‘In the course of [its] business,’ TNU, through its agent Yonnotti, allegedly supplied the plaintiffs with ‘information,’ that the switchgear operated at 480 volts, to ‘guide’ them in fulfilling their obligation in the ‘transaction,’ the repair of the switchgear. As a result, section 552 demands that TNU must have ‘exercise[d] reasonable care or competence in obtaining or communicating’ any ‘information,’ in this case the amount of voltage.[4]

The application of Section 552 to a personal injury case is admittedly a little unusual but under the facts introduced into the record by the plaintiff totally justified. But the message to all us involved in civil litigation is to think about how we can focus on the communications between the parties to give rise to the use to Section 552 as a theory of recovery. What did your opponent write or say, not just do, that was incorrect? Did your opponent have a pecuniary interest in the matter? Did your client rely on that information? Was that reliance justified under all of the circumstances? Was the erroneous communication the result of the failure to exercise reasonable care in the collection or communication of the information? What was your client’s pecuniary loss as a result?

So, as you gather the facts and frame the legal theory of your case, remember the words of Mark Twain: “the difference between the almost right word and the right word is really a large matter — it’s the difference between the lightning bug and the lightning.” Recognizing that your adversary’s use of the wrong words is actionable may also be the difference between having your case dismissed on summary judgment and winning a jury trial.

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Notes

1. 216 S.W3d 293 (Tenn. 2007).
2. Id. at 297.
3. Id. at 300, quoting Biscan v. Brown, 160 S.W.3d 462, 482-83 (Tenn.2005).
4. Id. at 301.

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JOHN A. DAY, a fellow of the American College of Trial Lawyers, practices civil litigation in Brentwood. His newest book, Day on Torts: A Handbook for Tennessee Tort Lawyers, will be released on Nov. 1.