Legal Memorandum: Fraud and Misrepresentation Claims in KS

Issue: May a plaintiff pursue a claim for fraud, misrepresentation and detrimental reliance if no actual detrimental reliance can be demonstrated?

When a plaintiff lacks evidence to establish an essential element of his or her claim, “there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Crooks v. Greene, 12 Kan. App. 2d 62, 64-65, 736 P.2d 78 (1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).  Accordingly, a defendant is entitled to summary judgment if the defendant can establish the absence of evidence necessary to support an essential element of a plaintiff’s case.  Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 167, 975 P.2d 1218 (1999).  See, Osterhaus v. Toth, 291 Kan. 759, 769, 249 P.3d 888, 897 (2011) (“Reliance was an essential element of each of Osterhaus’ claims—fraud, fraud by silence, negligent misrepresentation, violation of the KCPA, and breach of contract.”).

To establish a claim of fraud, a plaintiff must prove “an untrue statement of material fact, known to be true by the person making it, made with the intent to deceive or recklessly made with disregard for its truthfulness, and justifiable reliance upon the statement by another party resulting in [his] injury.”  Hildred Beverage v. Shelter Mut. Ins. Co., 803 P.2d 211, 211 (Kan. Ct. App. 1990) (emphasis added); Bomhoff v. Nelnet Loan Servs., Inc., 279 Kan. 415, 422,