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Jowers v. BOC Grp., Inc. - No. 1:08-CV-0036, 2009 U.S. Dist. LEXIS 53126 (S.D. Miss. Apr. 14, 2009)


The elements of a claim for negligent misrepresentation under Mississippi law are: (1) a misrepresentation or omission of a fact; (2) that the representation or omission is material or significant; (3) that the defendant failed to exercise that degree of diligence and expertise the public is entitled to expect of it; (4) that the plaintiff reasonably relied on the defendant's representations; and (5) that the plaintiff suffered damages as a direct and proximate result of his reasonable reliance.


Plaintiff Robert Jowers instituted the present complaint against defendant companies, which were all manufacturers of welding rods, which were allegedly used by Jowers during his career as a welder in Mississippi. According to Jowers, the fumes given off by welding rods caused him to suffer neurological injury. In his third amended complaint, Jowers brought complaint for: (1) aiding and abetting, acting in concert, and joint and concurrent tortfeasors in the tortious failure to warn; (2) aiding and abetting, acting in concert, and joint and concurrent tortfeasors in the failure to investigate and test; (3) conscious/negligent misrepresentation involving risk of physical harm; (4) negligent performance of an undertaking; (5) negligence; (6) negligent sale of a product; (7) strict liability -- sale of an unreasonably dangerous product; (8) strict liability -failure to warn; and (9) punitive damages. The defendants filed motions for summary judgment.


Should defendants’ motions for summary judgment be granted?


Yes, in part.


The court granted defendants’ motion for summary judgment on Jowers’ common law negligence claims, holding that the Mississippi Products Liability Act (“MPLA”) abrogated common law product-based claims. Defendants’ motion for summary judgment on Jowers’ misrepresentation claims was granted in part and denied in part. To the extent Jowers’ claim for negligent misrepresentation was premised on omissions, summary judgment was granted. According to the court, common law claim for negligent failure to warn was duplicative of, if not abrogated by, the MPLA claim for strict liability failure to warn. On the other hand, to the extent that Jowers’ claim for negligent misrepresentation was premised on half-truths or affirmative misrepresentations, whether relied upon directly or indirectly, summary judgment was denied. According to the court, Jowers must be allowed to pursue a theory of negligence misrepresentation premised upon indirect reliance on affirmative misrepresentations made by a defendant. The court averred that Jowers may prevail on this claim only if he could show that: (a) a defendant made an affirmative misrepresentation to Jowers' employer; (b) the defendant reasonably expected that the employer would convey substantially the same affirmative misrepresentation to Jowers; (c) the employer actually did so; and (d) Jowers actually and reasonably relied upon the affirmative misrepresentation. On defendants’ motion for judgment on Jowers’ claim for punitive damages, the court deemed it proper to deny the same pursuant to existing state law and case law.

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