STEVEN WALLERSTEIN, SHAWN WALLERSTEIN, AND DEBORAH WALLERSTEIN, APPELLANTS,
v.
HOSPITAL CORPORATION OF AMERICA, ETC., ET AL., APPELLEES
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The court reversed the dismissal of a negligent misrepresentation claim brought by adoptive parents against a hospital and physicians who examined their adopted child before birth/adoption and allegedly assured them the child was healthy, when the child was later discovered to have serious neurological conditions. The court found that even though the complaint was poorly pleaded with multiple theories, it sufficiently alleged negligent misrepresentation.
The court reversed the dismissal as to the negligent misrepresentation claim against the physicians and the hospital's vicarious liability, finding that appellants alleged sufficient ultimate facts to state a cause of action. The court affirmed the dismissal of all other theories of recovery.
[1] A cause of action for negligent misrepresentation requires a misrepresentation of a material fact, made by a representor who knew or should have known of its falsity, wit…
[2] In a suit for negligent misrepresentation, it is sufficient to allege that the representation was made under circumstances in which its falsity should have been known, ra…
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Join FLexlaw to unlock all legal intelligence“In order to be actionable, a suit for negligent misrepresentation must contain the following elements: (1) misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the representation without knowledge as to its truth or falsity, or must make the representation under circumstances in which he ought to have known of its falsity; (3) the representor must intend that the representation induce another to act on it; (4) injury must result to the party acting in justifiable reliance on the misrepresentation.”
Establishes the legal standard for negligent misrepresentation claims that the court applied
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Join FLexlaw to unlock all legal intelligenceShawn Wallerstein was born at Plantation General Hospital on July 21, 1983, and was examined by appellees Dr. Chandler, Dr. Day, and Dr. Williams on A…
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PER CURIAM.
Appellant Shawn Wallerstein was born in Plantation General Hospital on July 21, 1983. Shawn’s natural mother, whose identity is not disclosed in the record, was discharged two days later. During this time, Shawn and his mother were under the care of the agents and employees of appel-lee Hospital Development and Service Corporation, doing business as Plantation General. On August 30, 1983, Shawn came under the care of appellees Dr. Chandler, Dr. Day, and Dr. Williams.
Neither the Hospital nor any of the appellee doctors continued to monitor or treat Shawn following his post-birth hospitalization. Appellants proceeded with adopting Shawn and subsequently discovered that he suffered from chronic, fixed, non-progressive encephalopathy (brain dysfunction) with a spastic quadriparesis (paralysis).
Shawn has also been tentatively diagnosed as having Cerebral Palsy. This discovery took place on or about June 27, 1984, almost one year after the child’s birth. Appellants contend that these conditions and the child’s unsuitability for adoption was, or should have been, obvious to appellees. On an appeal from a judgment dismissing an amended complaint for failure to state a cause of action, the appellate court’s burden is to determine whether sufficient ultimate facts are alleged which under any theory of the law would entitle plaintiffs to the money judgment they seek. Baxter v. Royal Indem. Co., 285 So. 2d 652 (Fla. 1st DCA 1973).
In the instant case, appellants, at some time in the course of this suit, have asserted almost every possible theory of recovery. Almost obscured among the meritless allegations is, however vague, a cause of action for negligent misrepresentation.
In order to be actionable, a suit for negligent misrepresentation must contain the following elements: (1) misrepresentation of a material fact; (2) the repre-sentor must either know of the misrepresentation, must make the representation without knowledge as to its truth or falsity, or must make the representation under circumstances in which he ought to have known of its falsity; (3) the representor must intend that the representation induce another to act on it; (4) injury must result to the party acting in justifiable reliance on the misrepresentation. [emphasis added]
Atlantic Nat’l Bank of Florida v. Vest, 480 So. 2d 1328, 1331 (Fla. 2d DCA 1985), rev. denied, 491 So. 2d 281 (Fla.1986) and 508 So. 2d 16 (Fla.1987).
Although the Atlantic Nat’l Bank case sets out definite elements to state a cause of action for negligent misrepresentation, ease law reveals a rather “loose” construction. The tort is often mentioned and rarely explained. All that must be alleged in a suit for negligent misrepresentation is not that the representor intended to make a false statement, but rather that the representation was made under circumstances in which its falsity should have been known.
Appellants’ fifth amended complaint alleged that the appellee doctors were employed “to examine, recognize, and diagnose the health and physical condition of [Shawn] to recognize the child’s suitability for adoption,” and that the appellee doctors assured them that the child was healthy and suitable for adoption. The claim against the Hospital is its vicarious liability for the conduct of the doctors, alleged to be its agents or employees. Although appellants might not have been asking for a warranty, they did seek an assurance and were willing to rely upon it.
Accordingly, we reverse solely on the theory of negligent misrepresentation as to the defendants Day, Chandler and Williams, which theory we have gleaned from the scattered allegations on the part of the pleader; and we also reverse as to the Hospital based on the doctrine of respondeat superior.
We affirm the dismissal of the action as to all other theories. See Greenwald v. Grayson, 189 So. 2d 204 (Fla. 3d DCA 1966).
LETTS, GLICKSTEIN and GARRETT, JJ., concur.
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In re Standard Jury Instructions IN Civil Cases-Report NO. 09-01 (Reorganization of the Civil Jury Instructions). In re Standard Jury Instructions in Civil Cases-Report No. 09-02 (Greater Weight of the Evidence, 35 So. 3d 666 (Fla. 2010)…ments of those two theories are set forth in First Interstate Development Corp. v. Ablanedo, 511 So. 2d 536 (Fla.1987); Johnson v. Davis, 480 So. 2d 625 (Fla.1985); Lance v. Wade, 457 So. 2d 1008 (Fla.1984); Wallerstein v. Hospital Corp. of America, 573 So. 2d 9 (Fla. 4th DCA 1990); Atlantic National Bank v. Vest, 480 So. 2d 1328 (Fla. 2d DCA 1985). 2. One or more issues in instruction 409.7 may need to be omitted and the issues renumbered if there is no question of fact for determination by the jury. A pr…1 / 2
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Standard Jury Instructions-Civil Cases (1.0, 613 So. 2d 1316 (Fla. 1993)…la.1987); Johnson v. Davis, 480 So. 2d 625 (Fla.1985); Lance v. Wade, 457 So. 2d 1008 (Fla.1984); Atlantic National Bank v. Vest, 480 So. 2d 1328 (Fla. 2d DCA 1985), review denied, 491 So. 2d 281 (Fla.1986); Wallerstein v. Hospital Corp. of America, 573 So. 2d 9 (Fla. 4th DCA 1990). 2. The recipient of a fraudulent misrepresentation is justified in relying upon its truth, even where an investigation might have revealed its falsity, unless he or she knows the representation to be false or its falsity is obv…
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In re Standard Jury Instructions IN Civil Case-Report NO. 12-01, 130 So. 3d 596 (Fla. 2013)…ments of those two theories are set forth in First Interstate Development Corp. v. Ablanedo, 511 So. 2d 536 (Fla.1987); Johnson v. Davis, 480 So. 2d 625 (Fla.1985); Lance v. Wade, 457 So. 2d 1008 (Fla.1984); Wallerstein v. Hospital Corp. of America, 573 So. 2d 9 (Fla. 4th DCA 1990); Atlantic National Bank v. Vest, 480 So. 2d 1328 (Fla. 2d DCA 1985). 2. One or more issues in instruction 409.7 may need to be omitted and the issues renumbered if there is no question of fact for determination by the jury. A pr…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Foy Baxter and Annie Smith Baxter v. Royal Indem. Co., 285 So. 2d 652 (Fla. 1st DCA 1973)
- Atl. Nat'l Bank OF Fla. v. Vest, 480 So. 2d 1328 (Fla. 2d DCA 1985)
- Greenwald v. Robert Grayson, M.D., 189 So. 2d 204 (Fla. 3d DCA 1966)
- Taylor v. Mead, 189 So. 2d 204 (Fla. 2d DCA 1966)