eastern district of wisconsin milwaukee county, employee

Wisconsin law, reliance on a misrepresentation is equivalent to a causation element. 92 Thus, in
the recent Wisconsin Court of Appeals case of Malzewski v. Rapkin, the Court dismissed both
breach of contract and misrepresentation claims because the buyer of a home had not justifiably
relied on statements by the seller. 93
It also should go without saying that for each claim plaintiffs must show actual reliance;
constructive reliance will not support a claim. Thus, the Wisconsin pattern jury instructions add
that “[r]epresentations are to be tested by their actual influence on the person to whom made [not
upon the probable effect of such representation upon some other person].” 94 As stated in the
Restatement (Second) of Torts, § 537, “the recipient of a fraudulent misrepresentation can
recover from the maker for his pecuniary loss only if he in fact relies upon the misrepresentation
in acting or in refraining from action.” 95
In sum, if Plaintiffs cannot produce any evidence that they actually and justifiably relied
on Mercer’s advice, all of their claims fail. As shown above and highlighted below, the
undisputed evidence does, in fact, demonstrate that the County did not actually rely on anything
Mercer did or didn’t do in connection with the enactment of the BackDROP. And, even if they
had, their reliance was not justifiable.
92 See, e.g., Ramsden v. Farm Credit Services of North Cent. Wisconsin ACA, 90 N.W.2d 1 (Wis.App.
1998)(“Reliance, in a negligent misrepresentation claim, is equivalent to the causation element.”).
93 296 Wis.2d 98, 723 N.W.2d 156 (Wis.App. 2006).
94 See WIS JI-CIVIL 2401 (brackets in original).
95 Wisconsin has adopted the Restatement (Second) of Torts, § 537, in Ollerman, 288 N.W.2d 95; see also,
Restatement (Second) of Torts, § 546, comment a (“If the misrepresentation has not in fact been relied upon by the
recipient in entering into a transaction in which he suffers pecuniary loss, the misrepresentation is not in fact a cause
of the loss”); Learjet v. Spenlinhauer, 707 F.Supp. 44, 48 (D.Me. 1989)(court could find no liability in fraud where
misrepresentations were in no way relayed to or relied on by the claimant).
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