Legal Memorandum: Child Custody Determination in AL

Issue: What is the standard of review for a reversal of a trial court’s child custody determination in Alabama?

The courts in California*FN1 have determined that comparative negligence does not apply to negligent misrepresentation claims.  Carroll v. Gava, 98 Cal. App. 3d 892, 897, 159 Cal. Rptr. 778 (1979).  The issue is whether the plaintiff justifiably relied on the misrepresentation.  Alliance Mortgage v. Rothwell, 10 Cal. 4th 1226, 1239, 900 P.2d 601, 44 Cal. Rptr. 2d 352 (1995).  A plaintiff’s recovery will be barred only if his or her actions were “manifestly unreasonable in the light of his own intelligence or information.  It must appear that [plaintiff] put faith in representations that were ‘preposterous’ or ‘shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth.'”  OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp., 157 Cal. App. 4th 835, 865, 68 Cal. Rptr. 3d 828, 856 (2007).

FOOTNOTES

*FN1 The North Dakota Supreme Court relied on the California courts’ interpretation of Cal. Civ. Code § 1572, which is identical to N.D.C.C. § 9-03-08, and based on the same provisions of the Field Code, to find a statutory cause of action for negligent misrepresentation.  Bourgois v. Montana-Dakota Utils., 466 N.W.2d at 818.

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