Krivosha, C. J.

This appeal concerns the essential elements which must be established in order to sustain an action for fraudulent misrepresentation. A review of the cases previously decided by this court discloses that there appears to be a conflict as to what these essential elements are. This conflict, however, can be resolved. Nevertheless, for reasons more particularly set out hereinafter, we find that the district court judgment in the instant case must be set aside and the cause remanded for a new trial in accordance with this opinion.

The record discloses that early in January of 1984 the *263 appellant, Don E. Nielsen, desiring to purchase a home for his son in West Point, Nebraska, considered a house owned by the appellee, Or lene Adams. While touring the house, Nielsen observed a sump pump in the closet at the foot of the basement stairs. After inquiry by Nielsen, Ms. Adams advised Nielsen that the sump pump was installed to cure a small problem of moisture accumulating at the bottom of the stairway. When asked directly by Nielsen as to whether Ms. Adams had experienced previous water problems anywhere else in the basement, Ms. Adams replied, “Absolutely not.” Nielsen continued an inspection of the basement and found no apparent evidence of any water. Satisfied, Nielsen purchased the house shortly thereafter and took possession in early March 1984. Approximately 1 month later, water entered into the basement during a series of spring rains, causing extensive damage. Nielsen filed suit against Ms. Adams, alleging fraudulent misrepresentations, and sought damages. During the course of the trial, Ms. Adams acknowledged that she had concealed information from Nielsen concerning previous water leakage in the basement, but claimed that the leakage disclosure would not have been “relevant” because, she said, she believed that problem had been corrected. Removal of the paneling by Nielsen, however, revealed an extensive water problem that had existed for years in the basement, sufficient to have rotted the wood studs on all walls of the basement containing paneling.

At the close of all the evidence, the case was submitted to the jury, and the jury returned a verdict in favor of Ms. Adams and against Nielsen. The sole assignment of error presented to us pertains to instruction No. 2, given by the court and which Nielsen maintains was in error. Instruction No. 2 was, in part, as follows:

Before the plaintiff can recover against the defendant the burden of proof is upon the plaintiff to prove by a preponderance of the evidence each and all of the following propositions:

1. That the defendant made false representations to the plaintiff regarding problems with water leaking into the basement of the house in question and that this constituted a false representation of a material fact;

*264 2. That the defendant knew that the aforesaid representations were false when they were made, or in the alternative, the defendant made said representations with a reckless disregard as to truth or falsity;

3. That the false representations were made by the defendant with the intent to decieve [sic] the plaintiff; or in the alternative, the defendant made false representations with a reckless disregard for truth or falsity,

4. That the statements made by the defendant were made for the purpose of inducing the plaintiff to purchase the house;

5. That the plaintiff did in fact rely upon said representations and was induced thereby to purchase the real estate in question;

6. That the plaintiff was thereby damaged; and

7. The nature, extent and amount of the damages thus sustained by the plaintiff.

(Emphasis supplied.)

Nielsen specifically challenges item 3 of instruction No. 2. He maintains that imposing upon the plaintiff the burden to prove “[t]hat the false representations were made by the defendant with the intent to decieve [sic] the plaintiff” (emphasis supplied) was wrong under the law because it imposed upon Nielsen an improper and additional burden. In support of his position Nielsen argues that we have previously held that scienter is not an element of fraud and that even an innocent statement made without knowledge can be the basis for recovery. Nielsen is correct in that decisions of this court can be found which hold that scienter is not an element of fraud. In Maser v. Lind, 181 Neb. 365, 371, 148 N.W.2d 831, 834(1967), we said: “We have consistently held that proof of scienter is unnecessary, a misrepresentation being actionable even though made innocently and with honest belief of its truth.” A more careful examination of the cases, however, reveals that we may have been wrong about how we have stated the rule.

The problem is further confused by the fact that we have sometimes omitted any reference to “intent to deceive” in the instruction to the jury and at other times have included “intent to deceive.” For example, in the early case of Peterson v. *265 Schaberg, 116 Neb. 346, 217 N.W. 586 (1928), we said:

To maintain an action for damages for false representation, the plaintiff, in substance, must allege and must prove by a preponderance of the evidence the following elements: (1) What representation was made; (2) that it was false; (3) that the defendant knew it was false, or else made it without knowledge as a positive statement of known fact; (4) that the plaintiff believed the representation to be true; (5) that the plaintiff relied on and acted upon the representation; (6) that the plaintiff was thereby injured; and (7) the amount of the damages.

(Syllabus of the court.)

And recently, in the case of ServiceMaster Indus. v. J.R.L. Enterprises, antep. 39, 43, 388 N.W.2d 83, 86 (1986), we said:

To sustain a cause of action for fraudulent representation, a plaintiff must show (1) that a representation was made, (2) that the representation was false, (3) that when made the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion, (4) that it was made with the intention that the plaintiff should rely upon it, (5) that the plaintiff reasonably did so rely, and (6) that he or she suffered damage as a result.

Of significance is the fact that, throughout all of this time, and through the various cases from Peterson v. Schaberg, supra, to ServiceMaster Indus. v. J.R.L. Enterprises, supra, no reference is made to “intent to deceive.”

However, there appears to be a second line of cases decided by this court which have included “intent to deceive” as a necessary element. As an example, in Page v. Andreasen, 200 Neb. 641, 644, 264 N.W.2d 682, 685 (1978), we said:

The essential elements required to sustain an action for fraudulent misrepresentation are, generally speaking, that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was *266 induced thereby to act to his injury or damage.

(Emphasis supplied.)

The same rule appears in a number of other cases decided by this court, including Hahn & Hupf Constr. v. Highland Heights Nsg. Home, 222 Neb. 189, 382 N.W.2d 607 (1986); Havelock Bank v. Woods, 219 Neb. 57, 361 N.W.2d 197 (1985); Flakus v. Schug, 213 Neb. 491, 329 N.W.2d 859 (1983); and Erftmier v. Eickhoff, 210 Neb. 726, 316 N.W.2d 754 (1982).

An examination of our cases discloses that this element of “intent to deceive” first found its way into our law in 1969 in the case of Transportation Equipment Rentals, Inc. v. Mauk, 184 Neb. 309, 312, 167 N.W.2d 183, 186 (1969), wherein we said:

The essential elements required to sustain an action for fraud are, generally speaking, that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage.

(Emphasis supplied.)

As already noted, while we have, on occasion, continued to use “intent to deceive” as an element of fraud, we have not consistently done so, nor have we always agreed that using “intent to deceive” was proper, la Mid-States Equipment Co. v. Evans, 191 Neb. 230, 232-33, 214 N.W.2d 496, 498 (1974), Judge Spencer, in a concurring opinion, noted:

Appellant in this action contends that intent is an element of fraud in Nebraska. He relies upon Transportation Equipment Rentals, Inc. v. Mauk (1969), 184 Neb. 309, 167 N.W.2d 183 . . . .

The statement “that it was made with intent to deceive and for the purpose of inducing the other party to act upon it” crept into that case by inadvertence and had no bearing on the result reached. Our law is otherwise. See, Swanson Petroleum Corp. v. Cumberland (1969), 184 Neb. 323, 167 N.W.2d 391; Allied Building Credits, Inc. v. Damicus (1958), 167 Neb. 390, 93 N.W.2d 210; Campbell v. C & C Motor Co. (1946), 146 Neb. 721, 21 N.W.2d 427.

*267 The truth is that this is one of those times when it appears that everyone may, in part, be correct, though no one in toto is right. Professor Keeton, carrying the banner for Professor Prosser in Prosser and Keeton on the Law of Torts, Misrepresentation and Nondisclosure ch. 18 (5th ed. 1984), appears to have explained the reason for this confusion in the law of fraudulent misrepresentation. While it is generally suggested that it is poor writing style to quote at length from another, where, as here, the “other” has fully and eloquently described the problem and little can be served by attempting to rephrase it simply to take original credit, we quote at length from Prosser and Keeton:

Misrepresentation and nondisclosure runs all through the law of torts, as a method of accomplishing various types of tortious conduct which, for reasons of historical development or as a matter of convenience, usually are grouped under categories of their own. . . .

The elements of the tort cause of action in deceit . . . have been stated as follows:

1. A false representation made by the defendant. In the ordinary case, this representation must be one of fact.

2. Knowledge or belief on the part of the defendant that the representation is false — or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of “scienter.”

3. An intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation.

4. Justifiable reliance upon the representation on the part of the plaintiff, in taking action or refraining from it.

5. Damage to the plaintiff, resulting from such reliance.

Prosser and Keeton, supra § 105 at 725, 728.

It therefore appears that one of the recognized elements of an action in fraud is indeed scienter. However, a more careful reading of the cases, as explained by Professor Keeton, discloses that the reference to scienter is extremely technical.

Professor Keeton goes on in his treatise on torts to say:

*268 It was not until as late as 1889 that the House of Lords, in the leading case of Derry v. Peek, clearly identified the deceit action with intentional misrepresentation, and left negligence and strict responsibility to be dealt with by other remedies.

In that case the defendants, who were directors of a tramway corporation, issued a prospectus to induce the public to subscribe for stock, which contained the unqualified statement that “* * * the company has the right to use steam, or mechanical motive power, instead of horses. * * *” In fact, the company had no such right. The plaintiff, who had purchased stock on the faith of the statement, brought an action of deceit. The court took an extremely charitable view of the evidence, and concluded that the defendants had honestly believed the statement to be true, although they had no reasonable ground for any such belief. It was held that the action could not be maintained, since nothing more than negligence was shown. For deceit there must be proof “that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.”

Prosser and Keeton, supra § 107 at 740.

The author then turns to the question of scienter, saying:

The intent which underlies an intentional misrepresentation is a more complex matter than the relatively simple intention in the case of assault and battery. It involves the intent that a representation shall be made, that it shall be directed to a particular person or class of persons, that it shall convey a certain meaning, that it shall be believed, and that it shall be acted upon in a certain way. In the usual case, all of this is present beyond dispute. In addition, there is the intent to accomplish an ultimate purpose, as to benefit the speaker, or to cause harm to the one addressed. It is well settled that, except as to the issue of punitive damages, this last is of no importance. The fact that the defendant was disinterested, that he had the best of motives, and that he thought he was doing the plaintiff a kindness, will not absolve him from *269 liability, so long as he did in fact intend to mislead.

So far as culpability is concerned, none of these intentions is controlling. The intent which becomes important is the intent to deceive, to mislead, to convey a false impression. Obviously this intent, which has been given the name of “scienter” by the courts, must be a matter of belief, or of absence of belief, that the representation is true; and it was this element which was so strongly emphasized in Derry v. Peek. The state of the speaker’s mind, notwithstanding its elusiveness as a matter of psychology and its difficulty of proof, must be looked to in determining whether the action of deceit can be maintained.

There is of course no difficulty in finding the required intent to mislead where it appears that the speaker believes his statement to be false. Likewise there is general agreement that it is present when the representation is made without any belief as to its truth, or with reckless disregard whether it be true or false. Further than this, it appears that all courts have extended it to include representations made by one who is conscious that he has no sufficient basis of information to justify them. A defendant who asserts a fact as of his own knowledge, or so positively as to imply that he has knowledge, under circumstances where he is aware that he will be so understood when he knows that he does not in fact know whether what he says is true, is found to have the intent to deceive, not so much as to the fact itself, but rather as to the extent of his information. Since the state of his mind may be inferred from the circumstances, and in the absence of satisfactory evidence to the contrary it may sometimes be quite reasonable to infer that he must have known that he did not know, there is a certain amount of leeway in the direction of holding the defendant to something like a reasonable standard of judgment.

Apparently it is at this point that the line is to be drawn between an intent to mislead and mere negligence. An honest belief, however unreasonable, that the representation is true and the speaker has information to *270 justify it, was held in Derry v. Peek to be no sufficient basis for deceit. It is of course clear that the very unreasonableness of such a belief may be strong evidence that it does not in fact exist; and where this conclusion is reached as an inference of fact-, or even through a presumption capable of being rebutted, there is nothing inconsistent with a basis of intent.

Prosser and Keeton, supra § 107 at 741-42.

It seems clear that if one were to quickly read Prosser and Keeton on the Law of Torts, one could conclude that scienter or the intent to deceive is a necessary element of the tort cause of action in deceit. A closer reading, however, makes it clear that including “intent to deceive” as a separate element of a cause of action for fraudulent misrepresentation is unnecessary and improper. As pointed out in Calvert Fire Ins. Co. v. Unigard Mut. Ins. Co., 526 F. Supp. 623, 637 (D. Neb. 1980):

In sum, proof of scienter is necessary. However, as the case law demonstrates, this is scienter in terms of a knowledge requirement, not in terms of an “intent to deceive,” as Unigard contends. Accordingly, it is clear, in light of the foregoing discussion, that the essential elements necessary to prove a cause of action for misrepresentation have, in essence, remained the same. There are no actual differences, as the parties in this case contend.

Cf. Christopher v. Evans, 219 Neb. 51, 361 N.W.2d 193 (1985) (an equitable action seeking to rescind a contract based upon fraudulent concealment where intent is specifically alleged).

It would appear that in the instant case instruction No. 2(2), which required the jury to find that the defendant knew that the representations were false or made with reckless disregard, and instruction No. 2(3), which required the jury to find that the statements were made with the intent to deceive or with reckless disregard for the truth, are really one and the same. Yet, by making them two separate items, the jury could mistakenly conclude that, before the plaintiff can recover, the plaintiff must prove both elements and that if the evidence establishes item 2, something more and different is required to prove item 3. In a very technical sense, scienter is required. However, it is *271 expressed in terms of false or reckless statements, as set out in instruction No. 2(2). Instruction No. 2(3) is not necessary and is confusing.

Having considered the history of the matter and the various cases within this jurisdiction, we conclude that adding “intent to deceive” as a separate element rather than its being included in the element of knowledge or belief is error. Our earlier holding in Peterson v. Schaberg, 116 Neb. 346, 217 N.W. 586 (1928), and our recent holding in ServiceMaster Indus. v. J.R.L. Enterprises, ante p. 39, 388 N.W.2d 83 (1986), therefore, are correct statements of the law and ones which we should continuously, consistently, and uniformly follow. In doing so we believe we will nevertheless be true to the rules of law regarding the necessary elements of the offense of a tort action for false representation or deceit. We therefore hold that in order to maintain an action for damages for false representation, the plaintiff must allege and prove by a preponderance of the evidence the following elements: (1) that a representation was made; (2) that the representation was false; (3) that, when made, the representation was known to be false, or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that the plaintiff should rely upon it; (5) that the plaintiff reasonably did so rely; and (6) that he or she suffered damage as a result.

If the defendant can establish by a preponderance of the evidence that the defendant had a reasonable basis to believe that the statement of fact was true, then recovery will be denied. If, on the other hand, the evidence is such that a reasonable person in the position of the defendant could not have honestly believed the statement to be true, recovery may be had. In any event, it need not be shown that the defendant also had a “bad” motive in doing what he or she did. The fact that the defendant deceives, itself, establishes scienter even though the defendant may have been unaware of the deception.

Therefore, to the extent that we have, in previous cases, included “intent to deceive” as a necessary element of a cause of action for fraudulent misrepresentation or deceit, we specifically now reject that view, and to the extent that Transportation Equipment Rentals, Inc. v. Mauk, 184 Neb. *272 309, 167 N.W.2d 183 (1969); Hahn & Hupf Constr. v. Highland Heights Nsg. Home, 222 Neb. 189, 382 N.W.2d 607 (1986); Havelock Bank v. Woods, 219 Neb. 57, 361 N.W.2d 197 (1985); Flakus v. Schug, 213 Neb. 491, 329 N.W.2d 859 (1983); and Erftmier v. Eickhoff, 210 Neb. 726, 316 N.W.2d 754 (1982), include as a necessary element “intent to deceive,” they are specifically overruled.

As we have already indicated, our decision herein may, at first blush, seem to be in conflict with our decision in Maser v. Lind, 181 Neb. 365, 148 N.W.2d 831 (1967). We believe, however, that a more careful reading of the opinion discloses such not to be the case. While, perhaps, the language in Maser v. Lind was broader than it need be, the general statement to the effect that “ ‘ “if a party, without knowing whether his statements are true or not, makes an assertion as to any particular matter upon which the other party has relied, the party defrauded in a proper case will be entitled to relief” ...’ ” is, indeed, a correct statement of the law. Id. at 371, 148 N.W.2d at 834-35. Likewise, we believe that Maser v. Lind is correct in suggesting that it is not necessary to either plead or prove the element of scienter. But, rather, as we have already indicated, scienter is established when the evidence discloses that the defendant made a false statement with the intention that the plaintiff rely upon the statement. We do not, therefore, believe that Maser v. Lind, supra, is inconsistent with our position herein.

It is regrettable that the trial court, relying upon cases decided by this court which used “intent to deceive” as a necessary element, instructed the jury as it did. Nevertheless, we believe that justice requires that the plaintiff’s case be submitted to the jury upon a correct statement of the law, and for that reason we are left with no other alternative but to reverse the judgment and remand the cause with directions to grant the plaintiff a new trial.

Reversed and remanded for a new trial.

Owens, J.

¶1 This case presents the issue of whether a person who makes an undesignated anatomical gift by signing an organ donor card authorizes only a hospital to accept such a gift. We hold that the former Washington Uniform Anatomical Gift Act (WAGA), RCW 68.50.520-.620 (1993), repealed by Laws of 2008, ch. 139, § 31, RCW 68.50-.901-.903, allows only hospitals to accept an undesignated anatomical gift. Furthermore, we hold that while the WAGA does not provide a statutory cause of action, unauthorized use of an organ is actionable under common law theories of recovery.

STATEMENT OF FACTS

¶2 Jesse Smith unexpectedly died of heart problems shortly after his 21st birthday. Shortly before he died, Jesse had renewed his driver’s license and signed an attached card indicating his intent to make an anatomical gift of his organs. The card did not ask him to designate a donee for such a gift. Clerk’s Papers (CP) at 268-69.

¶3 Given the suddenness of death, Jesse’s body was sent to the King County Medical Examiner for an autopsy. At the time of the autopsy, the medical examiner apparently had not determined if Jesse made an anatomical gift of any kind.

¶4 Pursuant to agreement, the medical examiner shared its autopsy information with the Stanley Medical Research Institute (SMRI), a nonprofit organization located in Maryland and dedicated to supporting research of certain brain disorders. SMRI procures brain tissue for research at various facilities. The agreement between the King County Medical Examiner and SMRI (collectively Respondents) *646provided that SMRI would fund a pathologist position in the medical examiner’s office in exchange for the procurement of brain tissue from corpses received by the medical examiner. CP at 252-57. Dr. Nabila Haikal held SMRI’s funded position at the medical examiner’s office at the time Jesse’s body arrived for an autopsy.

¶5 On the day that Jesse died, Dr. Haikal called Jesse’s mother, Nancy Adams, to ask for permission to take Jesse’s brain tissue for research purposes. The parties dispute the nature of this conversation. According to Adams, Dr. Haikal requested a small sample of Jesse’s brain tissue for research.1 Adams did not consent immediately. Dr. Haikal then spoke for several minutes with Adams’s husband, Matthew Adams (Jesse’s stepfather), during which Dr. Haikal assured him that SMRI did not want to remove Jesse’s entire brain. Adams got back on the phone and verbally consented to donate a sample of Jesse’s brain to SMRI for the purpose of medical research. Dr. Haikal completed and signed a consent form at the medical examiner’s office indicating that Adams had agreed to “the removal of brain tissue” for purposes of SMRI’s research support. CP at 234.

¶6 The medical examiner performed the autopsy the next day. During the autopsy, the medical examiner removed Jesse’s brain along with his other organs for measurement. All the organs were replaced except for the brain, which was retained in whole and sent to SMRI. SMRI also collected tissue from Jesse’s spleen and liver as well as blood and cerebral fluid samples for related research on the brain. The autopsy report stated that “[t]he brain ... is donated to the Stanley Foundation by the family’s permission for neuropathological research.” CP at 274. Adams made no inquiry about the autopsy.

¶7 Over a year later, Adams learned through a Seattle television news report about SMRI’s procurement activities *647at the medical examiner’s office. Through this investigation, Adams learned that SMRI had taken Jesse’s entire brain and other body samples. Upon learning of this information, Adams allegedly suffered from grief and depression, requiring psychological and psychiatric treatment.

¶8 Adams filed suit against Respondents in 2006, claiming a violation of the WAGA as well as tortious interference with a dead body, invasion of privacy, conspiracy, and fraud, among other claims.2 Respondents moved for summary judgment of all claims. Respondents argued that SMRI was authorized to accept Jesse’s gift, which foreclosed all liability. The trial court granted Respondents’ motion and dismissed the entire case. Adams appealed to the Court of Appeals. The commissioner transferred the case to this court. See RAP 4.4.

ANALYSIS

I

¶9 This court reviews an order granting summary judgment de novo. City of Seattle v. Mighty Movers, Inc., 152 Wn.2d 343, 348, 96 P.3d 979 (2004). Under CR 56(c), a court may grant summary judgment if the record presents no genuine issue of material fact and the law entitles the moving party to judgment. Id. “In conducting this inquiry, this court must view all facts and reasonable inferences in the light most favorable to the nonmoving party.” Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Such facts must move beyond mere speculative and argumentative assertions. Retired Pub. Employees Council of Wash. v. Charles, 148 Wn.2d 602, 612-13, 62 P.3d 470 (2003). The court should grant summary judgment “only if reasonable persons could reach but one conclusion.” Id. at 613.

*648II

¶10 The issue for review requires us to determine the scope of Jesse’s anatomical gift. The parties agree that if the WAGA effectively authorized SMRI to accept Jesse’s gift, then Adams has no cause of action against Respondents. Br. of Appellant at 28. Alternatively, if Respondents violated the WAGA, then we must consider Adams’s theories of liability.3

A

¶11 The WAGA authorizes a qualifying donee to accept an anatomical gift for certain purposes. The donor can make such a gift simply by signing an organ donor card attached to a driver’s license form. Former RCW 68.50-.540(3) (2003). A gift becomes irrevocable upon the death of the donor. Former RCW 68.50.540(8).

¶12 The WAGA limits the donees who may accept an anatomical gift and limits the purpose for which a gift may be made:

(1) The following persons may become donees of anatomical gifts for the purposes stated:

(a) A hospital, physician, surgeon, or procurement organization for transplantation, therapy, medical or dental education, research, or advancement of medical or dental science;

(b) An accredited medical or dental school, college, or university for education, research, or advancement of medical or dental science; or

(c) A designated individual for transplantation or therapy needed by that individual.

(2) An anatomical gift may be made to a designated donee or without designating a donee. If a donee is not designated or if *649the donee is not available or rejects the anatomical gift, the anatomical gift may be accepted by any hospital.

Former RCW 68.50.570 (1993) (emphasis added). While subsection (1) lists all qualifying donees who may accept a gift, subsection (2) expressly authorizes only hospitals to accept such an undesignated anatomical gift.

¶13 In this case, Jesse indicated his intent to make an anatomical gift of any organ but did not designate a donee for such a gift. The donor card signed by Jesse simply provided: “I hereby make an anatomical gift to take effect upon my death. I give: [x] Any organ [ ] Specifically _.”4 CP at 269. Jesse checked the “[a]ny organ” box and did not write in any specific body part that he intended to donate. As Jesse did not designate a donee, his anatomical gift is governed by former RCW 68.50.570(2), which authorizes only a hospital to accept such a gift. SMRI is not a “hospital” as defined under the WAGA. Former RCW 68.50.530(6) (2003). Therefore, the WAGA did not authorize SMRI to accept Jesse’s undesignated anatomical gift.

¶14 Respondents do not claim that SMRI is a hospital. Instead, they claim that Jesse’s undesignated gift permitted any qualifying donee, including SMRI, to receive his gift.5 Respondents point out that under former RCW *65068.50.570(2), a gift “may be accepted by any hospital,” which they contend permits hospitals to accept donations but does not prohibit any other qualifying donee from accepting the gift. (Emphasis added.)

¶15 The canons of statutory construction do not permit such an interpretation. This court recognizes that “[o] missions are deemed to be exclusions.” In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002) (“Under expressio unius est exclusio alterius, ... to express one thing in a statute implies the exclusion of the other.”); State v. Delgado, 148 Wn.2d 723, 729, 63 P.3d 792 (2003). Hospitals are one of several qualifying donees under subsection (1), but hospitals are the only donee listed in subsection (2) as authorized to accept an undesignated gift. If the legislature did not intend to limit undesignated gifts to hospitals, then we assume that subsection (2) would have stated that any qualifying donee could accept such gifts.6

¶16 Respondents further claim that subsection (2) applies only when a person dies in a hospital and it does not limit the ability of other donees to accept gifts procured outside of a hospital. While subsections (1) and (2) do not mention anything about the place of death as determining the scope of the gift, Respondents look to the history of the Uniform Anatomical Gift Act (UAGA), 8A U.L.A.7 to sup*651port its interpretation. The original version of the UAGA authorized the “attending physician” to accept a donor’s undesignated gift. UAGA § 4(c), 8A U.L.A. 69, 130 (1968). Respondents propose that a situation in which the attending physician would accept a gift logically could arise only in a hospital. The 1987 revision of the UAGA, adopted in Washington, changed “attending physician” to “any hospital.” UAGA § 6(b), 8A U.L.A. 3, 54 (1987); see former RCW 68.50.570(2). Respondents contend that this change was made merely to encourage donation sharing among hospitals whenever a donor dies in a hospital. However, the revised language drops any reference to the attending physician and therefore provides no grounds to infer that undesignated gifts are limited to hospitals only when a patient dies in a hospital under the care of a physician. By its very terms, the 1987 version indicates that any hospital may accept an undesignated gift without any regard of whether the donor died under the care of a physician. Nothing in this revised version suggests that the designation applies only when the donor dies in a hospital.

¶17 Our interpretation that undesignated anatomical gifts are limited to hospitals is consistent with the primary purpose of the WAGA to increase the number of anatomical gifts for donation. Former RCW 68.50.520 (1993). In enacting the WAGA, the legislature specifically declared that the demand for organs and body parts exceeded the supply for transplant. Former RCW 68.50.520(1). Although the WAGA goes on to permit donors to make an anatomical gift for purposes of research and medical education, the legislature did not acknowledge these purposes in its findings. Therefore, it makes sense that the legislature would direct undesignated gifts to a hospital, which could determine if there was a need for such an organ or body part for transplantation. If undesignated gifts were not directed to hospitals, then any donee could accept such a gift for any authorized purpose, without first determining if the organ could be used for transplantation.

¶18 Consistent with the legislative findings, we assume that one who makes an anatomical gift contemplates that *652the gift could be used to satisfy the demand for transplants. On the other hand, it would be a stretch to assume that the legislature contemplated that undesignated gifts could be used for medical research or educational purposes even where a need for transplant exists. If SMRI or any other nonhospital wishes to increase donations, then they must obtain a specific designation from the donor or the family of the deceased or a donation from a hospital. Former RCW 68.50.540, .550 (2007).

B

¶19 Apart from their reliance on Jesse’s own anatomical gift, Respondents argue that they obtained Adams’s consent to remove the brain. The WAGA instructs that an anatomical gift made by the donor does not limit the ability of an authorized person to make a further gift after the donor’s death. Former RCW 68.50.540(10). Specifically, the WAGA authorizes a parent to make an anatomical gift of a child’s body if the child has not expressly refused to make such a gift and has died without a spouse or issue. Former RCW 68.50.550(l)(e).

¶20 Respondents attempted to secure Adams’s consent as Jesse’s next of kin. Under former RCW 68.50-.550(l)(e), Adams could have made a valid anatomical gift to SMRI at that time. Of course, Adams alleges that she did not donate Jesse’s entire brain or other organs to SMRI, which presents the critical question of fact in this case to be determined at trial. See Sattler v. Nw. Tissue Ctr., 110 Wn. App. 689, 701, 42 P.3d 440 (2002) (reversing summary judgment because scope of consent to remove organ presented a question of material fact).

Ill

¶21 Having determined that Jesse’s undesignated gift did not authorize SMRI to remove his brain, we must address Adams’s theories of liability for the alleged unau*653thorized removal.8 Adams seeks both statutory and common law remedies, which we discuss in turn.

A

¶22 Adams claims that the WAGA provides a cause of action for violation of its terms. While the WAGA does not expressly create a civil remedy, Adams argues that it implies a remedy from the various provisions protecting the choice of the decedent and family members to make an anatomical gift. Respondents counter that implying a cause of action does not serve the purpose of the WAGA because it was not created to benefit family members of decedents.

¶23 This court will imply a statutory cause of action under a three-prong test:

[F]irst, whether the plaintiff is within the class for whose “especial” benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.

Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990). In Bennett, this court recognized that the implied cause of action is premised on the assumption that the legislature would not specifically grant rights to a class of persons “without enabling members of that class to enforce those rights.” Id. at 921. Therefore, we must determine whether the WAGA specifically granted a right for family members to authorize the donation of a body part or organ of the deceased that would require us to imply a remedy protecting such a right.

*654¶24 The question of whether the WAGA provides an independent cause of action was recently considered in Amaker v. King County, 479 F. Supp. 2d 1162, 1163 (W.D. Wash. 2007), aff’d, 2008 WL 4104234, 2008 U.S. App. LEXIS 18453 (9th Cir.) (unpublished). In that case, the federal district court applied the Bennett test and rejected any implied cause of action under the WAGA. The court determined that the legislature enacted the WAGA to increase the number of organ donations for transplantation, not to protect family members of an organ donor. Id. The court further held that the WAGA did not grant rights to any identifiable class of persons. Id. at 1163-64. Finally, the court held that an implied cause of action would not serve the purpose of the WAGA to encourage organ donations. Id. at 1164. We look to the reasoning in Amaker as persuasive authority.

¶25 As to the first Bennett prong, this court “look[s] to the language of the statute to ascertain whether the plaintiff is a member of the protected class.” Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 475, 951 P.2d 749 (1998). The WAGA does not specifically benefit family members of organ donors. The legislature enacted the WAGA in order “to provide a program that will increase the number of anatomical gifts available for donation.” Former RCW 68.50.520(4). Consistent with this purpose, the WAGA established procedures to facilitate the procurement of anatomical gifts. These procedures require potential donees to obtain the family’s consent where the deceased had not made a gift before death. Former RCW 68.50.550. However, the WAGA does not create the family members’ right to authorize a gift. Family members have the right to control the disposal of the body of a deceased relative where the deceased has not made prearrangements for disposal. RCW 68.50.160(3). Furthermore, family members derive an interest in the proper treatment of the body of a deceased relative under the common law, which as discussed below provides its own remedies to protect such a recognized interest. Therefore, the WAGA’s procedures required to *655obtain consent do not grant rights to family members that require special protection because absent the WAGA, potential donees presumably would still have to seek the consent of the donor or family of the deceased before procuring an organ or body part.

¶26 Adams claims that the legislature intended to protect the interests of all who are involved in the donation process. She relies on Tyner v. Department of Social & Health Services, 141 Wn.2d 68, 79, 1 P.3d 1148 (2000), in which this court recognized that the State’s duty to investigate child abuse under RCW 26.44.050 created an implied cause of action for parents under investigation. In that case, the parties agreed that the statute specifically benefited child victims of abuse. Id. at 77. The issue was whether that benefit extended to the entire family unit in order to meet the Bennett analysis. Under the statute at issue, the legislature recognized the “ ‘paramount importance’ ” of the parent-child relationship “ ‘and any intervention into the life of a child is also an intervention into the life of the parent.’ ” Id. at 78 (quoting RCW 26.44.010). This legislative finding led the court to conclude that the benefit extended to protect the interests of parents from unwarranted separation from their children.

¶27 Unlike the statute at issue in Tyner, the WAGA creates procedures for the procurement of organs, not for the protection of persons who donate organs. While the legislative purpose of the WAGA declares that “[d]iscretion and sensitivity must be used in discussion and requests for anatomical gifts,” former RCW 68.50.520(4), such language does not create a specific right or benefit like the kind in Tyner.

¶28 The second and third Bennett prongs also fail. As noted above, the legislature created the WAGA to increase the procurement of anatomical gifts. The legislature even provided immunity for anyone who complies with the WAGA or attempts to comply in good faith. Former RCW 68.50.620(3) (1993). Establishing good faith immunity serves the legislative purpose by encouraging potential *656donees to seek anatomical gifts without increasing the risk of liability. Implying a cause of action would be inconsistent with the effort to encourage the increased procurement of anatomical gifts. See Amaker, 479 F. Supp. 2d at 1164.

¶29 Adams argues that the good faith immunity actually indicates that the legislature implicitly recognized liability for all bad faith violations of the WAGA. However, if the legislature had intended to provide a remedy under the WAGA, it would have expressly created the liability to which the immunity corresponds. Furthermore, as Respondents point out, the comment to the revised UAGA of 2006 recognizes that “if a person acts in subjective ‘bad faith,’the common law provides remedies.” UAGA § 18 cmt., 8A U.L.A. 27, 70 (2006) (Supp. 2008). In this case, Adams has raised several common law claims against Respondents for the failure to obtain her consent. These claims are based on her asserted interest in Jesse’s body, not on the WAGA.

B

¶30 Adams’s complaint raised a cause of action titled “Tortious Interference with a Dead Body Restatement (Second) of Torts § 868 [1979].” CP at 193-94. This court has never adopted that section of the Restatement. However, this court has recognized a common law action for tortious interference with a dead body. See Wright v. Beardsley, 46 Wash. 16, 20, 89 P. 172 (1907); Gadbury v. Bleitz, 133 Wash. 134, 136, 233 P. 299 (1925). We recently affirmed the viability of the tort in Reid v. Pierce County, 136 Wn.2d 195, 207, 961 P.2d 333 (1998) (citing Wright and Gadbury). Respondents argue that Adams did not plead a common law claim and therefore this action should be dismissed. See Amaker, 479 F. Supp. 2d at 1163-64. Adams claims that the cause of action includes both the Restatement and the common law claims.

¶31 The complaint properly raised a claim under the common law action for tortious interference with a dead body. Our state rules of civil procedure merely require that *657a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” CR 8(a). The complaint simply must give sufficient notice to the defendant of the nature of the claim being brought. Lightner v. Balow, 59 Wn.2d 856, 858, 370 P.2d 982 (1962) (“[P] leadings are primarily intended to give notice to the court and the opponent of the general nature of the claim asserted.”). We liberally construe pleading requirements in order “to facilitate proper decision on the merits, not to erect formal and burdensome impediments to the litigation process.” State v. Adams, 107 Wn.2d 611, 620, 732 P.2d 149 (1987).

¶32 The complaint in this case gave sufficient notice to Respondents of the nature of the claim brought against them. The only difference pointed out by Respondents between the common law action and the Restatement is that the Restatement permits liability for negligence, whereas the common law requires willful conduct.9 Such a distinction does not warrant the dismissal of the entire cause of action for improper pleading. Id. (“If a complaint states facts entitling the plaintiff to some relief, it is immaterial by what name the action is called.”). The complaint alleged that Respondents “intentionally, recklessly, and/or negligently” removed Jesse’s organs without permission. CP at 193. Therefore, the complaint sufficiently apprised Respondents that they would have to defend against a claim of intentional misuse of Jesse’s body. Furthermore, Adams correctly cited the common law tort in her response to summary judgment. CP at 329-31; Adams, 107 *658Wn.2d at 620 (“[I]nitial pleadings which may be unclear may be clarified during the course of summary judgment proceedings.”).

¶33 The tort of interference with a dead body allows recovery for mental suffering derived from the willful misuse of a body. Gadbury, 133 Wash, at 136 (“[I]f [mental] suffering is the direct result of a wilful wrong as distinguished from one that is merely negligent, then there may be a recovery.”). The action is not based on a property interest in the body itself, but rather an interest in the proper treatment of the body. See Herzl Congregation v. Robinson, 142 Wash. 469, 471, 253 P. 654 (1927) (recognizing generally that “there is a right of custody over, and interest in, a dead body, and the disposal of the body”); Wright, 46 Wash, at 19 (“the action is for a wrong against the feelings of the plaintiffs inflicted by a wrongful and improper burial of their dead”). The interest extends to relatives of the deceased and those who control the right to dispose of the body. See Gadbury, 133 Wash, at 139 (“those persons who by relationship have a peculiar interest in seeing that the last sad rites are properly given the deceased may maintain the action”); RCW 68.50.160(3).

¶34 While the parameters of the misuse that gives rise to a cause of action for tortious interference might be difficult to grasp firmly,10 this court may have best described it as misuse “in such a manner as to cause the relatives or persons charged with its decent sepulture to naturally suffer mental anguish.” Wright, 46 Wash, at 20. Furthermore, we need not attempt to define more precisely the nature of such misuse as the extent or nature of the interference alleged generally does not bar recovery. See Gadbury, 133 Wash, at 137-38 (“[T]he extent or degree of the misuse ought not to prevent recovery.”).

f 35 This court first recognized an actionable claim of the tort for an improper burial in Wright, where an undertaker *659had buried the corpse of a child in the same grave as another body and only six inches from the surface. 46 Wash, at 17. The court denied liability under a breach of contract theory for failing to bury the child according to agreement because the plaintiffs based their claim for damages on mental suffering. Nevertheless, the court went on to conclude that “it would shock the sensibilities to hold that there was no remedy for such a wrong.” Id. at 20. The court noted that the tort of wrongful interference traditionally related to the mutilation of a corpse, but concluded that an improper burial equated to a mutilation for purposes of raising an actionable claim. Id. (recognizing that a cause of action for wrongful mutilation “applies as well to a case such as the one at bar where the wrong consists of the manner of burial”).

¶36 Later, in Gadbury, this court upheld a claim where an undertaker withheld a body from the mother of the deceased as collateral for payment of funeral expenses. 133 Wash. 134. While the court noted that a party cannot recover for mental suffering based solely on a claim of negligence, it held that intentionally withholding the proper burial of a body constituted a willful misuse of the body. Id. at 137. The court determined that willful delay in providing a burial was equivalent to the improper burial at issue in Wright for purposes of the tort. Id. Like Wright, the court focused on the emotional effect of the treatment of the corpse rather than the extent of misuse. Id. at 137-38 (“The misuse in one case may be greater in degree, but nevertheless it is a misuse.”); see Wright, 46 Wash, at 20.

¶37 We believe that the unauthorized removal of a brain for use in scientific research involves the same kind of interference that causes mental suffering as would an improper burial or use of a body as collateral for payment of a debt. The permanent removal of the entire brain certainly can be considered a mutilation of the body. Furthermore, as mother of the deceased, Adams falls within the recognized category of plaintiff who can maintain a claim for mental suffering from such misuse. See Wright, 46 Wash, at 20 *660(“ ‘That mental suffering and injury to the feelings would be ordinarily the natural and proximate result of knowledge that the remains of a deceased husband had been mutilated is too plain to admit of argument.’ ” (quoting Larson v. Chase, 47 Minn. 307, 312, 50 N.W. 238 (1891))).

138 Respondents argue that the interference with Jesse’s body was proper because the medical examiner has authority to remove organs while conducting an autopsy. RCW 68.50.106. However, such authority does not imply that the medical examiner has authority to retain the brain and merely return a veritable shell of the skull to the family for burial, absent some compelling reason for further examination. Here, the medical examiner found no abnormality in the brain and gave it to SMRI for its own private research. These facts clearly support an action for mental suffering based on the alleged misuse of a body.

139 We hold that Adams has raised an actionable claim for tortious interference with a dead body. Of course, Adams still must prove the elements of this tort at trial and our opinion does not determine the satisfaction of any of such elements as a matter of law. Furthermore, the extent of injury presents a question of fact outside the scope of our review on summary judgment. See Gadbury, 133 Wash, at 138.

C

140 Adams claims that Respondents conspired to procure Jesse’s body tissue without Jesse’s or Adams’s consent. “A conspiracy is a combination of two or more persons who contrive to commit a criminal or unlawful act, or to commit a lawful act for criminal or unlawful purposes.” John Davis & Co. v. Cedar Glen # Four, Inc., 75 Wn.2d 214, 223, 450 P.2d 166 (1969).

141 In this case, Respondents agreed to procure organs and body parts to be used for medical research. CP at 252-57. While such an underlying agreement was not itself illegal, Adams alleges that Respondents agreed to procure Jesse’s brain without Adams’s consent. The pro*661curement of an organ without the consent of the deceased or an authorized family member would violate the WAGA and therefore constitute an unlawful act. We hold that this allegation raises a question of fact sufficient to overcome summary judgment.

D

¶42 Adams claims that Respondents invaded her privacy interests by turning over Jesse’s body tissue and confidential records to SMRI. This court has adopted the Restatement (Second) of Torts § 652D (1977), recognizing a cause of action for invasion of privacy. Reid, 136 Wn.2d at 212-13. The tort premises liability on the publication of a private matter that would be highly offensive to a reasonable person and is not a legitimate concern to the public. Id. at 210.

¶43 In Reid, this court held that relatives of a deceased person have a privacy interest in the autopsy photos of the deceased. Id. at 212. The court reasoned that the autopsy photos were part of the intimate details of the relatives’ lives in maintaining the dignity of the deceased. Id. at 210, 212. The court found support for this protection in the public policy expressed by the legislature to require that autopsy reports remain confidential. Id. at 210-11; RCW 68.50.105.

¶44 Adams’s claim fails to allege any publication of private matters. While Reid supports Adams’s claim that she has a privacy interest in Jesse’s autopsy records, she does not allege that such records were published. Respondents entered into an agreement to share autopsy records, in which SMRI agreed to abide by all state privacy and confidentiality laws applicable to the medical examiner. CP at 256. Adams does not assert that SMRI breached such confidentiality. While a research facility may eventually have assimilated its research of Jesse’s brain into data as part of a scientific publication, such filtered information likely would no longer contain any recognizable private *662matters connected to Jesse. Such dissemination does not rise to a highly offensive level like the publication of autopsy records to friends at a social gathering. See Fisher v. Dep’t of Health, 125 Wn. App. 869, 880, 106 P.3d 836 (2005). Therefore, we hold that the trial court properly dismissed Adams’s privacy claim.

E

¶45 Adams claims that Respondents fraudulently obtained her consent to remove Jesse’s organs. Fraud must be pleaded with particularity. CR 9(b). Particularity requires that the pleading apprise the defendant of the facts that give rise to the allegation of fraud. See Pedersen v. Bibioff, 64 Wn. App. 710, 721, 828 P.2d 1113 (1992); Harstad v. Frol, 41 Wn. App. 294, 301-02, 704 P.2d 638 (1985). Respondents do not argue that Adams’s claim of fraud is lacking particularity, but instead argue that any alleged misstatements made to Adams were irrelevant because Jesse gave an unrestricted gift. While we reject such a defense, we hold that Adams has failed to make a facial claim of fraud.

¶46 The elements of fraud include

(1) representation of an existing fact; (2) materiality; (3) falsity; (4) the speaker’s knowledge of its falsity; (5) intent of the speaker that it should be acted upon by the plaintiff; (6) plaintiff’s ignorance of its falsity; (7) plaintiff’s reliance on the truth of the representation; (8) plaintiff’s right to rely upon it; and (9) damages suffered by the plaintiff.

Stiley v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996). Adams does not allege the misrepresentation of an existing fact. Instead, she claims that Respondents fraudulently represented their intent to take a sample of Jesse’s brain tissue in attempting to obtain her consent. However, a false promise does not constitute the representation of an existing fact. Id. at 505-06 (holding that “a promise of future performance [is] not a representation of existing fact”).

*663 ¶47 According to Adams, Respondents asked for her consent to take a sample of Jesse’s brain tissue. Adams alleges that she gave such limited consent. Consistent with her given consent, the form completed by Dr. Haikal asserted that Adams agreed to donate Jesse’s “brain tissue,” not his entire brain. CP at 234. Therefore, Respondents did not obtain Adams’s consent by fraud or fraudulently misrepresent the scope of her consent. Essentially, Adams claims that Respondents broke their agreement to take a tissue sample rather than the entire brain. A broken promise does not support an action for fraud.

¶48 The real issue in this case is the scope of Adams’s consent, not the fraudulent inducement to obtain her consent. Regardless of whether Respondents actually intended to take a sample or the entire brain, Adams consented to donate a sample of Jesse’s brain tissue. While these facts support an action under other theories of recovery, Respondents did not commit fraud if they exceeded the scope of her consent.

CONCLUSION

¶49 We hold that the WAGA did not authorize SMRI to accept Jesse’s undesignated anatomical gift. However, we affirm the order for summary judgment on Adams’s claims for violation of the WAGA, fraud, and invasion of privacy. We reverse and remand on the remaining claims of tortious interference with a dead body and conspiracy.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NEWMAN.

In this case we must decide whether a misstatement by one party to a prenuptial agreement of the assets of the other party constitutes fraud such that the prenuptial agreement is voidable. We find that there is no justifiable reliance by the party claiming fraud with respect to this representation and, accordingly, we reverse the Superior Court on that issue. We also' remand this case to the Superior Court to review the determination by the trial court that a confidential relationship existed between the parties.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Louis Porreco (“Louis”) was forty-five years old, and previously married, when he met Appellee Susan Porreco (“Susan”), who was seventeen years old, in high school, living with her parents, and working part-time at a ski shop. The parties dated for over two years, during which time Louis provided Susan with an apartment, an automobile, insurance, a weekly allowance, access to one of his credit cards as a secondary card holder, and a gas charge account at his car dealership’s fueling station.

When the parties engaged to be married, Louis presented Susan with an engagement ring. The parties dispute whether Susan knew at the time Louis gave her the ring that it was not a genuine diamond but, instead, a cubic zirconium. The trial court credited Susan’s testimony that she believed the engagement ring contained a real diamond and did not discover that it was fake until the parties separated many years later. *65However, prior to giving her the engagement ring, Louis had given Susan other rings that contained genuine stones.1

In July of 1984, Louis presented Susan with the first draft of a prenuptial agreement. Louis did not discuss the agreement with Susan, other than to say that it was a standard agreement with the provisions left blank, and that Susan should seek legal counsel. This first draft of the agreement made no provision for Susan, other than that she was to retain her separate property in the event of a divorce. Louis later presented Susan with a second version of the agreement, which provided that, in the event of divorce, Susan was to receive $3,500.00 for each year of marriage in lieu of alimony, alimony pendente lite, and spousal support. Also pursuant to this agreement, Louis would provide Susan with an automobile and health insurance for one year. In all other respects, the agreement provided that the parties would retain their separate property, including all increase in value thereof.

Prior to the execution of the final version of the agreement, Louis prepared, in his own handwriting, a personal financial statement that listed Susan’s assets. Included in this list was an entry for the engagement ring, with the value listed at $21,000.00. Although the financial statement described the ring as an engagement ring, it did not state that the ring *66contained a diamond, or any other kind of stone. The final version of the agreement contained a typed personal financial statement of Susan’s assets, which also stated a value of $21,000.00 for the engagement ring. Based on this financial statement, the net worth of Susan’s assets appeared to be $46,592.00.2 Louis’ personal financial statement — the accuracy of which is not in dispute — listed his net worth at $3,317,666.00. Susan testified that she understood that, as a consequence of signing the prenuptial agreement, she would only receive, in the event of a divorce, the lump sum payment of $3,500.00 per year of marriage, an automobile, insurance, and whatever individual assets she possessed. An attorney reviewed the agreement on Susan’s behalf, although he conducted no negotiations for her.

When the parties separated more than ten years later, Susan took the ring to a jeweler in South Carolina, who informed her that it was not a diamond. Subsequently in the divorce proceedings, Susan filed a Petition for Special Relief to set aside the prenuptial agreement. Susan alleged three grounds for invalidation of the prenuptial agreement: (1) that Louis fraudulently induced her to enter the prenuptial agreement by misrepresenting the value of the ring; (2) that Louis breached a confidential relationship with her; and, (3) that Louis violated his duty, pursuant to our decision in Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990), of a full and fair disclosure.

The trial court invalidated the prenuptial agreement. The court concluded that a confidential relationship existed between Louis and Susan, due to the difference in the parties’ age, sophistication, wealth and status, and Susan’s dependence on Louis for her material and social well-being. Louis breached this confidential relationship, according to the trial court, by having a prenuptial agreement drafted that was lopsided in his favor. Additionally, the court found that Louis misrepre*67sented the nature and value of the ring in order to induce Susan to sign the prenuptial agreement, which she signed in reliance on Louis’ representation as to the ring’s value, and that this misrepresentation was material to her decision to sign the agreement. The court found credible Susan’s testimony that if she knew that Louis had given her a fake ring and lied about it, she would not have signed the prenuptial agreement and “would not have married the man.” Finally, the court declined to address Susan’s claim that Louis violated his duty to provide her with a full and fair disclosure, pursuant to Simeone.

The Superior Court affirmed3 in a 2-1 unpublished decision. The majority determined that Susan had proven, by dear and convincing evidence, that Louis fraudulently induced her to enter the prenuptial agreement by misrepresenting the value of the ring. Because the majority agreed with the trial court that the prenuptial agreement was voidable due to Louis’ fraud, they did not address the merits of the determination by the trial court that Louis breached a confidential relationship with Susan. Judge Kelly dissented. In Judge Kelly’s view, the remedy of invalidating the entire prenuptial agreement was too harsh. Instead, Judge Kelly would have required Louis to pay Susan $21,000.00 to compensate her for the value of the ring as stated in the prenuptial agreement, but would otherwise have enforced the agreement.

DISCUSSION

We begin our analysis with a recitation of the standard of our review of an appeal from the decision of a court sitting in equity. We are bound by the facts found by the court, when supported by competent evidence in the record. Kepple v. Fairman Drilling Co., 532 Pa. 304, 312, 615 A.2d 1298, 1302 (1992). “However, no such deference is mandated for conclusions of law, and we are at liberty to review such conclusions.” Id. (citing Presbytery of Beaver-Butler of United Presbyteri*68an Church v. Middlesex Presbyterian Church, 507 Pa. 255, 266, 489 A.2d 1317, 1323 (1985)).

The starting point for assessing the merit of any challenge to the validity of a prenuptial agreement is our decision in Simeone. In that opinion, we reevaluated our criteria for enforcing prenuptial agreements and rejected the .paternalistic assumption in our caselaw that courts must scrutinize these agreements and refuse to enforce those that failed to make a reasonable provision for the other spouse. As we stated in Simeone, “[s]uch decisions rested upon a belief that spouses are of unequal status and that women are not knowledgeable enough to understand the nature of contracts that they enter.” Simeone, 525 Pa. at 399, 581 A.2d at 165. Instead, we placed prenuptial agreements on the same general footing as other contracts, to be enforced pursuant to the well-settled principles of contract law: “[p]renuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts.” Id. at 400, 581 A.2d at 165.

In reorienting our standards for enforcing prenuptial agreements to the traditional principles of contract law, however, we did not lose sight of the fact that parties to these agreements do not necessarily deal with each other at arm’s length. Accordingly, we reaffirmed “the longstanding principle that a full and fair disclosure of the financial positions of the parties is required.” Id. at 402, 581 A.2d at 167. “Absent this disclosure, a material misrepresentation in the inducement for entering a prenuptial agreement may be asserted.” Id. (citing Hillegass’ Estate, 431 Pa. 144, 152-53, 244 A.2d 672, 676-77 (1968)). Thus, despite the prevailing theme in Simeone that the provisions of prenuptial agreements should be subject to no greater scrutiny than ordinary business contracts, we nevertheless continued the principle from our previous decisions that these agreements will only be enforced where the parties make a “full and fair” disclosure. In addition to preserving this vestige of our common-law caution towards the enforcement of prenuptial agreements, we af*69firmed that these agreements may be invalidated when fraudulently procured. “If an agreement provides that full disclosure has been made, a presumption of full disclosure arises. If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation then this presumption can be rebutted if it is proven by clear and convincing evidence.” Simeone, 525 Pa. at 403, 581 A.2d at 167 (citing Hillegass’, 431 Pa. at 152-53, 244 A.2d at 676-77). Thus, in Simeone, we recognized two alternate bases for invalidating a prenuptial agreement: (1) any ground for voiding a contract under the common law (such as fraud); and (2) where a party fails to make “full and fair” disclosure of his or her own assets prior to entering the agreement.

Presently, we are not asked to decide the extent of the “full and fair” disclosure rule of Simeone; neither the trial court nor the Superior Court relied on this rule to invalidate the prenuptial agreement. Rather, we must consider whether the trial court properly concluded that Louis fraudulently induced Susan to sign the prenuptial agreement by misrepresenting the value of the engagement ring on the list of her individual assets, which he prepared as part of the prenuptial agreement.

The elements of fraudulent misrepresentation are well settled. In order to void a contract due to a fraudulent misrepresentation, the party alleging fraud must prove, by clear and convincing evidence: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) resulting injury proximately caused by the reliance. Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999); Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994). All of these elements must be present to warrant the extreme sanction of voiding the contract.

To be justifiable, reliance upon the representation of another must be reasonable. See In re Allegheny International, Inc., 954 F.2d 167, 178 (3d Cir.1992) (applying Pennsyl*70vania law). See also Restatement (Second) of Contracts § 164, Comment “d” (“A misrepresentation, even if relied upon, has no legal effect unless the recipient’s reliance on it is justified.”). While the nature of the relationship between the parties4 may affect the reasonableness of one’s reliance, we hesitate to find reliance justified where the party claiming reliance had an adequate opportunity to verify the allegedly fraudulent statements. As aptly stated by the United States District Court for the Eastern District of Pennsylvania in explaining Pennsylvania law:

Whether reliance on an alleged misrepresentation is justified depends on whether the recipient knew or should have known that the information supplied was false. Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285 A.2d 451 (1971) (citing Emery v. Third National Bank, 308 Pa. 504, 162 A. 281 (1932)). Where the means of obtaining the information in question were not equal, the representations of the person believed to possess superior information may be relied upon. Siskin v. Cohen, 363 Pa. 580, 70 A.2d 293, 295 (1950).

Fort Washington Resources, Inc. v. Tannen, 858 F.Supp. 455, 460 (E.D.Pa.1994). Additionally, in Moore v. Steinman Hardware Co., 319 Pa. 430, 179 A. 565 (1935), a case in which the plaintiff alleged fraud in connection with the sale of corporate stock, we stated, “[i]t has many times been pointed out that a buyer or seller is not entitled to rely on such statements where he has an equal opportunity to ascertain the facts affecting the value of the thing to be sold.” Id. at 433, 179 A. at 566. Since Simeone, we have moved towards treating parties to a prenuptial agreement the same as parties to other contracts, with the attendant duties of investigation and due *71care for their bargain. We will, accordingly, judge the reasonableness of a party’s reliance by the same standards.

In the present case, although we are bound by the factual conclusions of the trial court,5 we cannot agree that Susan’s alleged reliance on Louis’ misrepresentation of the value of the ring on the schedule of her assets was justifiable. Susan had possession of the ring and was not impeded from doing what she ultimately did when the parties separated: obtain an appraisal of the ring.6 She had sufficient opportunity to inform herself fully of the nature and extent of her own assets, rather than rely on Louis’ statements concerning the valuation of her holdings. We find her failure to do this simple investigation to be unreasonable. Although we do not excuse Louis’ actions, we will not sanction the avoidance of an entire prenuptial agreement — the consequences of which Susan admittedly understood — on the basis of fraud in these circumstances.

Because the Superior Court never reviewed the determination by the trial court that a confidential relationship existed between Louis and Susan, however, we will reverse and remand for consideration of that issue.

Chief Justice ZAPPALA,

concurring.

I join Justice Newman’s opinion. I write separately to address my grave concern that the filing of an opinion that expresses itself in rhyme reflects poorly on the Supreme Court of Pennsylvania. While one may disagree intellectually with another’s judicial philosophy, and the exchange of differing views is at the very core of a jurist’s function, it is the substance of our views that should be the focus of discussion. The gravity of differing judicial views is diminished when the focus is taken away from their substance because of the form in which they are presented. I believe the integrity of this institution depends in great part upon the understanding that we engage in careful, deliberate and serious analysis of the legal issues that we undertake to examine. The integrity of the Supreme Court of Pennsylvania should never be placed in jeopardy by actions that would alter the perception of those whose lives and interests are affected by the decisions of the Court.

It is of little import whether the issue before the Court involves the decision to impose the death penalty on an individual, the economic interests of individuals or businesses, or the effect of divorce actions in Pennsylvania. Each issue addressed by this Court commands our thorough, weighty consideration. No matter addressed by this Court is frivolous.

The dignity of the Supreme Court of Pennsylvania, and the deserved respect that has been hard-earned, should not be diminished. I feel strongly that the expression of opinions issued by the highest court in the Commonwealth of Pennsylvania should reflect the gravity of our constitutional responsibility to our citizens. Our oath of office demands nothing less.

*73Justice CAPPY,

concurring.

I concur only in the result reached by the majority opinion. I write in this case not because the legal issues presented by the parties require further elucidation, to the contrary my learned colleagues have presented ample discourse on those topics. I write because I too am genuinely concerned with the point raised by the learned Chief Justice in his concurring opinion.

It is axiomatic and I firmly believe that every jurist has the right to express him or herself in a manner that the jurist deems appropriate. My concern, however, and the point on which I concur completely with the Chief Justice, lies with the perception that litigants and the public at large might form when an opinion of this Court is reduced to rhyme. I, too, feel strongly that no case with which this court deals is any more or less important than any other; I will endeavor to prevent a contrary impression whenever possible.

Accordingly, although respectful of the wishes of my esteemed colleague in the dissent, I am constrained to join the concurrence offered by the Chief Justice.

Justice CASTILLE,

concurring.

I join the lead opinion, but write separately to emphasize that there is another issue, which the courts below may have to address, before this matter can be finally resolved. Our reversal today is limited to the single issue brought before this Court: whether the prenuptial agreement was invalid as a result of fraud. But this is not the only open issue in the case.

In the initial action, appellee Susan Porreco alleged three distinct grounds for invalidation of the prenuptial agreement: (1) that appellant Louis Porreco fraudulently induced her to enter the prenuptial agreement by misrepresenting the value of the ring; (2) that appellant breached a confidential relationship with her; and (3) that appellant violated his duty of full and fair disclosure, as articulated in Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). Although appellee argued these three separate grounds, only the first ground is resolved by *74this appeal. It is therefore possible that, on remand, appellee may prevail on one of the two remaining grounds.

In this regard, I note that neither of the courts below has yet to rule on the question of whether appellant violated his duty of full and fair disclosure by misstating the value of the ring given to appellee. This Court in Simeone held that full and fair disclosure of the parties’ financial positions is required in a prenuptial agreement. 581 A.2d at 167. “Parties to [prenuptial] agreements do not quite deal at arm’s length, but rather at the time the contract is entered into stand in a relation of mutual confidence and trust that calls for disclosure of their financial resources.” Id. As noted in the lead opinion, a prenuptial agreement may be invalidated “where a party fails to make ‘full and fair’ disclosure of his or her own assets prior to entering the agreement.” Op. at 570 (citing Simeone).

The trial court invalidated the agreement in this case on two of appellee’s three grounds. First, the trial court found that appellant made a material misrepresentation regarding the value of the engagement ring, and thereby fraudulently induced appellee to enter into the agreement. Second, the trial court found that there was a confidential relationship between the parties, which appellant breached. The trial court did not, however, specifically pass upon the Simeone question.

On direct appeal, the Superior Court agreed that appellant fraudulently induced appellee into entering the prenuptial agreement by misrepresenting the value of the ring. Agreeing with the trial court’s determination that fraud had occurred, the Superior Court did not address the alternative question of whether or not appellant breached the confidential relationship, nor did it reach the full and fair disclosure question raised pursuant to Simeone, which the trial court itself did not reach.

The only issue before this Court on discretionary review is whether the courts below properly concluded that appellant fraudulently induced appellee into the prenuptial agreement by misrepresenting the value of the engagement ring on the *75list of her individual assets, which he prepared as part of the prenuptial agreement. The Court’s holding is limited to finding that appellee’s reliance on the misrepresentation was unjustifiable under common-law fraud principles, noting that “we are not asked to decide the extent of the ‘full and fair’ disclosure rule of Simeone; neither the trial court nor the Superior Court relied on this rule to invalidate the prenuptial agreement.” Op. at 570. Thus, although we have held that the prenuptial agreement is not invalid as a result of fraud — which is a high standard in the law, requiring the party alleging fraud to demonstrate all six elements with clear and convincing evidence — we have offered no view on the other questions. The matter is being remanded to the Superior Court to determine whether or not the prenuptial agreement can be invalidated as a result of the trial court’s finding of a breach of a confidential relationship. Depending on the outcome of that inquiry, the Superior Court may or may not have to reach the Simeone question. I would note that, if the Superior Court had to proceed to that inquiry, a remand to the trial court would be appropriate since that court never made a ruling on the question of full and fair disclosure.

Thus, although I agree with the lead opinion that the prenuptial agreement is valid with respect to the issue before this Court, i.e. fraud, I caution that the case is far from over since, upon remand, the prenuptial agreement may be found invalid on one of the two remaining grounds.

Justice SAYLOR,

dissenting.

As I would not impose a duty to investigate upon Appellee, I respectfully dissent. Preliminarily, in the context of fraud or misrepresentation, the elements necessary to avoid a contract correspond with those required to establish tort liability. See generally Restatement (Second) of Contracts (Topic 1. Misrepresentation, Introductory Note) (1979) (explaining that the rules applicable in the contractual context conform to those provided for in tort, although because “tort law imposes liability in damages for misrepresentation, while contract law does not, the requirements imposed by contract law are in *76some instances less stringent”). In either context, a recipient’s reliance need only be justifiable. See Restatement (Second) of Contracts § 164(1); Restatement (Second) of Torts § 525; see also Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994). Justifiable reliance represents an intermediate level of dependence, falling between reasonable reliance and mere or bare reliance. See generally Field v. Mans, 516 U.S. 59, 72-75, 116 S.Ct. 437, 444, 446, 133 L.Ed.2d 351 (1995) (collecting cases discussing the required level of reliance for common law fraud). Although whether one’s reliance is justified depends upon the facts and circumstances surrounding the representation, see id. at 71,116 S.Ct. at 444,116 S.Ct. 437, as a general rule, there is no duty to investigate. See Restatement (Second) of Contracts § 172 (stating that “a recipient’s fault in not knowing or discovering the facts before making the contract does not make his reliance unjustified unless it amounts to a failure to act in good faith and in accordance -with reasonable standards of fair dealing”).1

Here, taking into consideration that the parties did not deal at arm’s length, their age and experience disparity, the absence of any evidence indicating that Appellee failed to act in *77good faith, the fact that the financial disclosure listing the value of the engagement ring occurred immediately before Appellee was to sign the prenuptial agreement, and the fact that Appellant had given Appellee numerous items of genuine jewelry prior to the engagement ring, and, more important, in light of the trial court’s fact and credibility assessments, I would hold that the trial court did not err in concluding that Appellee’s reliance upon the intentional misrepresentation by Appellant was justified.

Justice EAKIN,

dissenting.

A groom must expect matrimonial pandemonium when his spouse finds he’s given her a cubic zirconium instead of a diamond in her engagement band, the one he said was worth twenty-one grand.

Our deceiver would claim that when his bride relied on his claim of value, she was not justified for she should have appraised it; and surely she could have, but the question is whether a bride-to-be ivould have.

The realities of the parties control the equation,1 and here they’re not comparable in sophistication; the reasonableness of her reliance we just cannot gauge with a yardstick of equal experience and age.

*78This must be remembered when applying the test by which the “reasonable fiancée” is assessed. She was 19, he was nearly 30 years older; was it unreasonable for her to believe what he told her?

Given their history and Pygmalion relation, I find her reliance was with justification. Given his accomplishment and given her youth, was it unjustifiable for her to think he told the truth?

Or for every prenuptial, is it now a must that you treat your betrothed with presumptive mistrust? Do we mean reliance on your beloved’s representation is not justifiable, absent third party verification?

Love, not suspicion, is the underlying foundation of parties entering the marital relation; mistrust is not required, and should not be made a priority. Accordingly, I must depart from the reasoning of the majority.

LYNCH, Circuit Judge.

In the early 1980s, Cummings Properties bought several roofs manufactured by HPG International. The roofs were installed on commercial buildings in Woburn and Burlington, Massachusetts. The roofs were composed of unreinforced polyvinyl chloride membranes and were sold with ten year warranties. After the warranty period, Cummings learned that such PVC roofs were subject to catastrophic failure and, in 1997, inquired of HPG. HPG recommended the immediate replacement of all of the roofs. Before Cummings did so, one of the roofs shattered and had to be replaced, mid-winter.

Although the roofs had outlasted the warranty periods, Cummings sued for deceit and negligent misrepresentation, based on oral statements HPG had made at the time of sale. Cummings also sued for violations of Mass. Gen. Laws ch. 93A, saying, inter alia, that HPG at least had a duty to warn, both before and after the end of the ten year warranty period.

The district court entered summary judgment for HPG on all claims. The case presents numerous issues under Massachusetts commercial law.

I.

On appeal from entry of summary judgment, we summarize the facts in the light most favorable to plaintiffs. 1

In 1980, Cummings sought to replace the roof on one of several commercial buildings in Massachusetts that it owns. Cummings considered a variety of roofing systems on the market, including unrein-forced polyvinyl chloride (PVC) membrane roofs manufactured by HPG International. During several meetings between HPG and Cummings, HPG representatives told Cummings that their PVC roof: 1) would last 20 years; 2) would perform better and last the same or longer than other commercial roof systems on the market; and 3) was suitable for use in the variable climate of Massachusetts. In 1980, 1981, and 1983, Cummings purchased unrein-forced PVC roofs from HPG for three of their buildings. In 1990, St. Thomas Realty Fund, Inc., a Cummings entity, purchased a building which had had such a HPG roof installed in 1986. Each roof carried with it a ten year warranty, which covered any condition caused by defective material supplied by HPG.

Unreinforced PVC membrane roofs proved to be prone to “shattering,” or sudden fragmentation of the membrane. Unreinforced PVC roofs are most likely to shatter in cold weather. HPG learned of the problem as early as 1988, but it is not clear how well known the shattering phenomenon was before that time. By 1990, HPG maintained a log of “Shatter Occurrences” documenting 121 of its roofs that had shattered, at an average age of between eight to ten years.

In 1990, two roofing companies elsewhere that had installed HPG unrein-forced PVC membrane roofs contacted HPG about the shattering problem. One asked HPG to join it in sending a notice to owners of those roofs to warn them of the defect and to recommend remedial action *20 to prevent possible future shattering. The other, a warranty service contractor for HPG, expressed concern about the risk of shattering and urged HPG to issue a statement. It also suggested HPG offer reduced price upgrades on out-of-warranty roofs to prevent shattering. HPG apparently did not act on those suggestions, nor did it notify Cummings of thé shattering phenomenon.

Also in 1990, two roofing industry trade groups issued a joint paper documenting the shattering phenomenon occurring in unreinforced PVC roofs and recommending safety and replacement procedures. Another paper, published sometime after 1992, documented problems between 1979 and 1984 with unreinforced PVC roofs such as embrittlement, shrinkage, and impact fractures, although it was unclear whether there were any incidents of shattering during that period.

Cummings learned of the shattering phenomenon around 1997 and contacted HPG, which recommended the immediate replacement of Cummings’ unreinforced roofs. Before Cummings had taken any action, however, on December 15,1997, the roof installed in 1980 shattered, forcing Cummings to replace it on an emergency basis. Cummings has since replaced two of the remaining three roofs as a precaution, and plans to replace the fourth roof soon. HPG has refused to assume financial responsibility for those replacements.

Cummings instituted this action seeking compensation for the costs associated with replacing the four roofs, claiming that HPG made representations about the useful life and quality of the roofs which, in light of the shattering defect, were false and misleading. Cummings says it relied on HPG’s false representations and, since the roofs did not last 20 years or perform better than other roofs, the fact that the warranties have expired should not bar its claims. Cummings also alleges that HPG committed unfair practices in violation of Massachusetts’ consumer protection law, Mass. Gen. Laws ch. 93A, § 11, because HPG failed to warn it of the shattering defect, which HPG allegedly knew about by 1988, while Cummings’ warranties were still in effect.

The district court granted summary judgment in favor of HPG, concluding that HPG’s representations were non-actionable statements of opinion, and also finding that there was no evidence HPG knew the statements were false at the time they were made. The court held that HPG had not violated Chapter 98A by failing to warn Cummings about the risk of shattering, if a duty to warn existed at all. HPG was also granted summary judgment on Cummings’ claim based on the roof owned by plaintiff St. Thomas Realty, as the court found no evidence that St. Thomas Realty’s predecessor was the recipient of any false representations.

II.

We review de novo the district court’s grant of summary judgment. Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir.1999), cert. denied, 528 U.S. 1161, 120 S.Ct. 1174, 145 L.Ed.2d 1082 (2000). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting Fed.R.Civ.P. 56(c)). Massachusetts law governs.

A. The Misrepresentation Claims

At first blush, it seems odd to permit an action for either deceit or negligent misrepresentation where the supposed misrepresentation is the subject of an express warranty (which disclaims all other warranties by its terms) and it is clear there was no breach of that warranty. In general, under Massachusetts law, if “the contract was fully negotiated and voluntarily signed, [then] plaintiffs may not raise as fraudulent any prior oral assertion *21 inconsistent with a contract provision that specifically addresses the particular point at issue.” Starr v. Fordham, 420 Mass. 178, 648 N.E.2d 1261, 1268 (1995) (quoting Turner v. Johnson & Johnson, 809 F.2d 90, 97 (1st Cir.1986)).

But as to deceit actions, Massachusetts courts, for public policy reasons, have long held that a party cannot induce a contract by fraudulent misrepresentations and then use contractual devices to escape liability. See Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551, 558 (1941) (“[CJontracts or clauses attempting to protect a party against the consequences of his own fraud are against public policy and void where fraud inducing the contract is shown.... ”). Here, Cummings claims that it would not have bought the roofs but for HPG’s misrepresentations, and so its deceit claim, based on HPG’s allegedly fraudulent misrepresentations, is not barred by the existence of an express warranty.

As for Cummings’ negligent misrepresentation claim, in some circumstances an express warranty will operate as a bar to recovery. Where the legality of the bargaining process is not at issue, a party cannot avoid its contractual obligations by seeking recovery for negligent misrepresentation. See Sound Techniques, Inc. v. Hoffman, 50 Mass.App.Ct. 425, 737 N.E.2d 920, 927 (2000) (declining to “ignore our general policy of upholding freedom to contract by allowing [plaintiff] to avoid a contractual disclaimer that it agreed to, uninfluenced by any fraud or other egregious or intentional misbehavior on [defendant’s] part”). The express warranty in this case does not contain an integration clause like the one in Sound Techniques, which stated that the party “has not been influenced to enter into this transaction nor has [it] relied upon any warranties or representations not set forth in this instrument.” Id. at 922. 2 We do not, however, explore whether this difference in warranty language matters under state law, as HPG has not argued this point.

1. Opinion v. Fact

There is an important threshold determination for any misrepresentation claim, .be it for deceit or for negligent misrepresentation: only statements of fact are actionable; statements of opinion cannot give rise to a deceit action, McEneaney v. Chestnut Hill Realty Corp., 38 Mass.App.Ct. 573, 650 N.E.2d 93, 96 (1995), or to a negligent misrepresentation action, Logan Equip. Corp. v. Simon Aerials, Inc., 736 F.Supp. 1188, 1199 (D.Mass.1990) Cummings argues that the district court erred in concluding that HPG’s representations about its roofs were non-actionable statements of opinion. As to the first statement — that the roof would last twenty years — we do not consider it to be a statement of opinion. The second statement, the supposed superiority of the PVC product, does fall in the opinion category, as normal commercial puffing. HPG’s statement that the roof was suitable for the New England Climate is close to the line between the two categories, but it is at least arguably more like a statement of fact than of opinion.

To draw the difficult distinction between a statement of fact and a statement of opinion, Massachusetts courts have looked to the Restatement (Second) of Torts, which provides that a representation is one of opinion “if it expresses only (a) the belief of the maker, without certainty, as to the existence of fact; or (b) his judgment as to quality, value, authenticity, or other matters of judgment.” Restatement (Second) of Torts § 538A (1977), quoted in McEneaney, 650 N.E.2d at 96. Statements touting the superlative quality of an *22 item, such as “mint condition” or “prime merchandise” are considered mere “puffing” or “seller’s talk,” non-actionable statements of opinion. Greenery Rehab. Group, Inc. v. Antaramian, 36 Mass.App. Ct. 73, 628 N.E.2d 1291, 1293 (1994); see also Powell v. Rasmussen, 355 Mass. 117, 243 N.E.2d 167, 168 (1969) (statements of mere opinion, estimate, or judgment cannot give rise to deceit action).

In contrast, statements that are susceptible of actual knowledge can give rise to a claim of deceit, if those statements are false. Zimmerman v. Kent, 31 Mass.App.Ct. 72, 575 N.E.2d 70, 74-75 (1991). For example, a statement by the builder of a house that “there would be no water in the cellar” was deemed an actionable misrepresentation because it was susceptible of the builder’s actual knowledge, Pietrazak v. McDermott, 341 Mass. 107, 167 N.E.2d 166 (1960), as was a false representation by a corporate agent about a corporation’s net worth, Gopen v. American Supply Co., 10 Mass.App.Ct. 342, 407 N.E.2d 1255, 1257 (1980). Even a statement that in form is one of opinion “may constitute a statement of fact if it may reasonably be understood by the recipient as implying that there are facts to justify the opinion or at least that there are no facts that are incompatible with it.” McEneaney, 650 N.E.2d at 96. Here, HPG’s representation that their roofs would last twenty years was specific and verifiable, not a mere expression of opinion or estimate. That statement was susceptible of HPG’s actual knowledge, and, even if opinion, indicated that HPG, the manufacturer of the roofs, knew facts to justify its statement. Similarly, HPG’s statement that the roofs were suitable for the Massachusetts climate is at least arguably a statement of fact.

2. Elements of Deceit

The borderline between what is an action for deceit and what is an action for negligent misrepresentation is unclear under Massachusetts case law. In an action for deceit under Massachusetts law, a plaintiff must show that the defendant: made a false representation of material fact; for the purpose of inducing reliance; and that plaintiff relied upon the representation to his or her detriment. Danca v. Taunton Sav. Bank, 385 Mass. 1, 429 N.E.2d 1129, 1133 (1982); Snyder v. Sperry and Hutchinson Co., 368 Mass. 433, 383 N.E.2d 421, 428 (1975). Proof of intent to deceive is not required, so long as there is proof of a false representation of fact susceptible of the speaker’s knowledge. Snyder, 333 N.E.2d at 428. The uncertainty has to do with what role the speaker’s knowledge of the falsity plays.

Many Massachusetts cases say that an element of deceit is that the speaker “made a false representation of a material fact with knowledge of its falsity.” Danca, 429 N.E.2d at 1133 (emphasis added); see also Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768, 779 (1975) (comparing common law fraud to Chapter 93A claim); Barrett Assoc. v. Aronson, 346 Mass. 150, 190 N.E.2d 867, 868 (1963); Kilroy v. Barron, 326 Mass. 464, 95 N.E.2d 190, 191 (1950); Rood v. Newberg, 48 Mass.App.Ct. 185, 718 N.E.2d 886, 892 (1999); accord Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 379 (1st Cir.1991). But other deceit cases say “plaintiffs need not prove that [defendant] knew his statement to be false” so long as there is proof that the representation was false and susceptible of actual knowledge. Nickerson v. Matco Tools Corp., 813 F.2d 529, 530 (1st Cir.1987); see also VMark Software, Inc. v. EMC Corp., 37 Mass.App.Ct. 610, 642 N.E.2d 587, 593 n. 9 (1994) (speaker need not know statement is false if fact represented is susceptible of actual knowledge); Zimmerman, 31 Mass.App.Ct. 72, 575 N.E.2d 70 at 74 (same); Acushnet Fed. Credit Union v. Roderick, 26 Mass. App.Ct. 604, 530 N.E.2d 1243, 1244-45 (1988) (same).

At the very least, there is a lack of clarity in Massachusetts case law. See In re Friedlander, 170 B.R. 472, 476-78 *23 (Bankr.D.Mass.1994) (noting confusion). The confusion may stem from the mixing of the concept of knowledge with the concept of intent to deceive, or from use of language without an effort to distinguish which sort of misrepresentation is alleged. The Supreme Judicial Court has not, as best we can tell, addressed this question. But it has referred to the Restatement (Second) of Torts in this area, see Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 536 N.E.2d 344, 349 (intentional misrepresentation), cert denied, 493 U.S. 894, 110 S.Ct. 242, 107 L.Ed.2d 192 (1989); Rasmussen, 243 N.E.2d at 168-69 (same); Danco, 429 N.E.2d at 1134 (negligent misrepresentation), so we will use those Restatement definitions.

Since Massachusetts considers deceit to be a variety of fraud, we utilize the definition in Restatement (Second) of Torts § 526:

A misrepresentation is fraudulent if the maker (a) knows or believes that the matter is not as he represents it to be, (b) does not have the confidence in the accuracy of his representation that he states or implies, or (c) knows that he does not have the basis for his representation that he states or implies.

“Knowledge” for the purpose of showing fraud is established by any of these three conditions. A claim of deceit has been categorized as an intentional tort, Mohr v. Com., 421 Mass. 147, 653 N.E.2d 1104, 1115 n. 16 (1995); G & B Assoc. v. Springfield, 39 Mass.App.Ct. 51, 653 N.E.2d 203, 205 (1995). As will be discussed later, “[m]ere negligence in discovering the falsity before making the representation is not sufficient for an action in tort for deceit, but it is enough for an action in negligence.” 37 J. Nolan & L. Sartorio, Massachusetts Practice § 143 at 240-41 (2d ed.1989). A defendant who makes a false statement may be liable for deceit if he implicitly conveyed that he had knowledge of the represented fact. See McEneaney, 650 N.E.2d at 96; Restatement (Second) of Torts § 526-.

The issue is whether, at the time HPG made the statements, HPG knew that the statements were false within the Restatement test. See Zimmerman, 575 N.E.2d at 74. Here, Cummings has failed to offer evidence that HPG had any basis for knowledge that the statements, at the time they were made, were false, a failure that is fatal to Cummings’ deceit claim. See id. at 74-75.

The latest that HPG could have made any allegedly false representations was 1986, assuming arguendo that Cummings can maintain a claim based on the 1986 roof on a building sold to St. Thomas Realty in 1990, see infra. Cummings offers a single article, dated 1986, reporting problems (other than shattering) with PVC roofs in the early 1980s, and admits that it has no basis to impute knowledge of that report to HPG at the time of the sales. The letters and the other articles Cummings relies on post-date the 1986 sale, as does the shatter log, which shows that by 1990, HPG had tracked claims of 121 shattered roofs. There is simply no evidence to suggest that HPG knew or should have known that its statements about its product were false, in the Restatement sense, when HPG made the statements.

3. Negligent Misrepresentation

Cummings also pursues a negligent misrepresentation claim, which, under Massachusetts law, requires it to prove that HPG provided it with false information and “with failure to exercise reasonable care or competence in obtaining or communicating the information.” Nota Constr. Corp. v. Keyes Assoc., 45 Mass.App.Ct. 15, 694 N.E.2d 401, 405 (1998).

a. Economic Loss Doctrine

The district court dismissed the negligent misrepresentation claim, predicting that Massachusetts courts would apply the “economic loss doctrine” in a new context — to preclude claims of negligent misrepresentation about statements as to the *24 viability of products made in a commercial setting to induce the purchase of products where the product is subject to warranties. The district court relied on the thoughtful analysis of the question contained in Sebago, Inc. v. Beazer East, Inc., 18 F.Supp.2d. 70 (D.Mass.1998).

In the context of ordinary negligence claims in tort actions, the Supreme Judicial Court has held that “purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage.” FMR Corp. v. Boston Edison Co., 415 Mass. 393, 613 N.E.2d 902, 903 (1993) (rejecting claim that negligent repair of electric lines caused power outages which caused loss of profits); accord Garweth Corp. v. Boston Edison Co., 415 Mass. 303, 613 N.E.2d 92, 93-94 (1993) (rejecting claim that negligent oil spill caused damages for delay in ability to complete contract work). The SJC thus aligned itself with the majority rule as to the economic loss doctrine and cited a Supreme Court case which held that where a commercial product injures itself and nothing or no one else, there is no need to create a product liability cause of action independent of contract obligation. See FMR Corp., 613 N.E.2d at 903 (citing East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871-75, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986)).

On the other side of the issue, as the district court here and in Sebago recognized, Danca suggests that the economic injury rule does not apply to bar negligent misrepresentation claims. Danca recognized a cause of action against a bank that made misrepresentations that led to plaintiffs proceeding to a sale which they otherwise would have cancelled. Danca, 429 N.E.2d at 1134. The court handled the overlap between this tort and contractual obligations by using special damages rules. Id. Danca can perhaps be distinguished, as Sebago suggests, as a case in which the contract obligation and the tort liability were not entirely coextensive because the misrepresentation claim stemmed from the provision of services, and not a defective product. See Sebago, 18 F.Supp.2d at 96. But in 1998 the Massachusetts Appeals Court flatly stated, without drawing distinctions, that “[a]n exception to the [economic loss] doctrine permits recovery for economic losses resulting from negligent misrepresentation.” Nota, 694 N.E.2d at 405.

It is not clear to us which route Massachusetts will take as to the application of the economic loss doctrine to negligent misrepresentation claims. It may choose the FMR model or it may choose the Danca model, or do something else. As a result, we turn to a more traditional form of analysis, which disposes of the claim.

b. Elements of Negligent Misrepresentation

Looking to the Restatement (Second) of Torts definition, Massachusetts courts have held that in order to recover for negligent misrepresentation, a plaintiff must show that the defendant: (1) in the course of its business, (2) supplied false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance upon the information, and (6) that it failed to exercise reasonable care or competence in obtaining or communicating the information. Fox v. F & J Gattozzi Corp., 41 Mass.App.Ct. 581, 672 N.E.2d 547, 551 (1996) (citing Restatement (Second) of Torts § 552(1) (1977)); see also Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 142 F.3d 26, 41 (1st Cir.1998). Although courts sometimes analyze negligent misrepresentation claims and deceit claims together, the degree of culpability a plaintiff must prove to establish liability for negligent misrepreséntation is different, and less demanding, than that to establish liability for deceit. See Sound Techniques, 737 N.E.2d at 926 (“Fraud and [negligent misrepresentation] embody two different states of mind ....”) *25 (quoting Snyder v. Lovercheck, 992 P.2d 1079, 1088 (Wy.1999)); W. Page Keeton, ed., Prosser and Keeton on Torts, § 107 at 742 (5th ed.1984) (scienter element distinguishes deceit action from negligent misrepresentation action).

In general, Massachusetts courts treat negligent misrepresentation claims more as negligence actions than deceit actions, focusing on the degree of care exercised by the speaker in making the statement. See Danca, 429 N.E.2d at 1133 (finding conduct and words “negligently made” gave rise to negligent misrepresentation claim). For a negligent misrepresentation claim, courts ask simply whether the speaker was negligent in failing to discover the falsity of his or her statements. See id.; Prosser and Keeton on Torts, § 107 at 745 (representation may be negligent where there is a “lack of reasonable care in ascertaining the facts, or in the manner of expression, or absence of skill and competence required by a particular business or profession”).

Even under a negligence standard, however, Cummings has failed to provide any evidence that HPG could have known that the representations were false when made. The future performance of the roofs cannot alter what HPG knew at the time the statements were made. Accordingly, Cummings’ negligent misrepresentation claim, like its deceit claim, must fail. See Lawton v. Dracousis, 14 Mass.App.Ct. 164, 437 N.E.2d 543, 547 (1982) (rejecting negligent misrepresentation claim where no evidence speaker had knowledge of undisclosed facts).

B. Chapter 93A, § 11 Claims

Cummings also argues that the district court’s summary judgment was improper on its claims under Mass. Gen. Laws ch. 93A, §§ 2, 11, because HPG’s misrepresentations and failure to warn it of the shatter defect constitute actionable “unfair or deceptive acts or practices.” Chapter 93A is broad in scope and does not catalogue the type of conduct falling within its prohibition; instead, it references the interpretations of unfair acts and practices contained in section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1). See Mass. Gen. Laws ch. 93A, § 2(a). Conduct is unfair or deceptive if it is “within at least the penumbra of some common-law, statutory, or other established concept of unfairness” or “immoral, unethical, oppressive, or unscrupulous.” PMP Assoc., Inc. v. Globe Newspaper Co., 366 Mass. 593, 321 N.E.2d 915, 917 (1975), quoted in Cambridge Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 769 (1st Cir.1996). The context in which the unfair act took place is of great import. Kattar v. Demoulas, 433 Mass. 1, 739 N.E.2d 246, 257 (2000).

1. Unfair Misrepresentations

Cummings argues that its failure to sustain deceit and negligent misrepresentation claims should not prevent it from establishing a Chapter 93A violation based on misrepresentation. While it is true that an action under Chapter 93A need not articulate every element of a common law tort claim in order to survive, see Massachusetts Farm Bureau Fed’n, Inc. v. Blue Cross, Inc., 403 Mass. 722, 532 N.E.2d 660, 664 (1989), a defendant’s allegedly unfair conduct “must at least come within shouting distance of some established concept of unfairness,” Massachusetts School of Law, 142 F.3d at 42. Here, Cummings’ Chapter 93A claim is not even within earshot of a misrepresentation claim. There can be no claim of unfairness based on a misrepresentation where, as we previously found, Cummings has failed to show HPG made any deceitful or even negligently false statements.

2. Duty to Warn

Cummings’ allegation of unfairness based on HPG’s failure to warn is less *26 easily dispatched. 3 It is uncontested that during at least some of Cummings’ warranty periods, HPG knew that there was a substantial occurrence of shattering in its unreinforced PVC roofs. By some time in 1990, HPG had sufficient notice that the roofs were prone to catastrophic failure. At that time, three of the roofs were still under warranty and one was not. Yet HPG said nothing. The question is whether Cummings has created a jury question as to whether HPG’s silence rises to the level required to show unfair or unscrupulous behavior actionable under Chapter 93A.

Like the district court, we reject Cummings’ argument that HPG was under a continuing post-sale duty to warn based on Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 696 N.E.2d 909 (1998). That case involved claims under the more forgiving consumer standard contained in section 9 of Chapter 93A, where the defective product resulted in personal injury. Id. at 924. As the district court noted, to extend the rule in Vassallo to claims between commercial parties under section 11 would be an unwarranted expansion of liability under Chapter 93A.

We analyze this failure to warn claim under section 11 of Chapter 93A first by seeing if Massachusetts case law dealing with failure to warn liability would apply here, thus, by analogy, indicating the existence of a 93A claim. Cf Cambridge Plating, 85 F.3d at 769 (referring to common law torts to determine whether conduct gives rise to Chapter 93A liability). A post-sale duty to warn of a defective product only arises under Massachusetts law if the product was negligently designed as originally sold. See Williams v. Monarch Machine Tool Co., 26 F.3d 228, 232 (1st Cir.1994); see also Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 12 (1st Cir.2001). In Cigna, applying Massachusetts law, we upheld a damages award for failure to warn where plaintiff showed that the defective product failed to conform to industry safety standards at the time it was sold and later required modification. See id. at 13. Here, Cummings has offered no direct evidence that HPG’s roofs were negligently designed. We are reluctant to reason backwards to that conclusion from the mere fact of failure. In addition, there are Massachusetts cases saying that the purchaser of a manufactured product who claims as damages only economic loss or damages caused by the product itself cannot maintain a claim for negligent design (where a warranty action is available). E.g., Marcil v. John Deere Indus. Equip., 9 Mass.App.Ct. 625, 403 N.E.2d 430, 434-35 (1980).

That analysis does not necessarily dispose of the unfairness question under Chapter 93A. Indeed, there is an argument, which is not frivolous, that HPG should have notified Cummings about the risk of the roofs shattering, and that its failure to do so was unethical and reaches the level of “unscrupulousness” required in an action under section 11 of Chapter 93A. The sudden collapse of a roof in a commercial building could easily lead to damage to the building’s tenants, and there are arguably good public policy reasons to support a duty to warn.

Even assuming arguendo the existence of such a duty, however, Cummings has not shown that HPG’s failure to warn it about the roof defect caused it any actual damage. It is not enough for Cummings to say that had it known of the defect it would not have purchased the roofs; that argument belongs with the misrepresentation claims. To prove that *27 HPG’s failure to warn was actionable unfair conduct, Cummings must produce some evidence of injury that directly resulted from HPG’s silence. There is no evidence of a missed opportunity to reinforce the roofs less expensively than replacing them, or some damages, other than to the roof itself, that could have been avoided. See McCann v. Davis, Malm & D’Agostine, 423 Mass. 558, 669 N.E.2d 1077, 1079 (1996) (upholding dismissal of Chapter 93A claim where plaintiff failed to show that defendant’s negligence caused its damages and failed to identify unfair conduct); Weeks v. Harbor Nat’l Bank, 388 Mass. 141, 445 N.E.2d 605, 607 n. 2 (1983) (“[D]amages are an essential element of the cause of action” under Mass. Gen. Laws ch. 93A, § 11.). Indeed, Cummings does not even argue for such damages. Rather, it seeks the replacement cost for the roofs. But the roofs were warranted for only ten years and lasted that long, and longer, without failing. There was, to be sure, a risk that they would fail within that period, but they did not. And Cummings did have notice before the last one failed. We see no damages from the failure to warn. Summary judgment on the Chapter 93A claims was appropriate.

Finally, we note that Cummings is not entitled to attorneys’ fees for its claims that HPG violated section 11 of Chapter 93A. Attorneys’ fees are available under section 11 if a plaintiff sustained a loss of “money or property” due to a defendant’s unfair practice. Mass. Gen. Laws ch. 93A, § 11; see also Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 537 N.E.2d 107, 114 (1989). Here, Cummings has not shown any such loss due to HPG’s failure to warn, and as the Massachusetts Supreme Judicial Court has held, where a plaintiff fails to prove any damages, “relief solely in the form of attorneys’ fees may not be had.” Jet Line, 404 Mass. 706, 537 N.E.2d at 115.

C. St. Thomas Realty’s Claim

We need not review that part of the district court’s decision relating to the roof of plaintiff St. Thomas Realty, as that claim is premised on Cummings’ failed misrepresentation and Chapter 93A claims.

III.

For these reasons, the judgment of the district court is affirmed. Costs are awarded to defendant.

OPINION

MAY, Judge.

Victor and Lynell Jeffrey appeal summary judgment for Methodist Hospital and partial summary judgment for Paul Okolo-cha, M.D. (“the Doctor”). We affirm the judgment for the Doctor, reverse the judgment for the Hospital, and remand.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the non-moving party, the Jeffreys, are that they planned to adopt a child and V.S. intended to place her unborn child for adoption. The Jeffreys would adopt the child only if there were no “signs of significant health issues.” (App. of the Appellants (hereinafter “App.”) at 100.) The child was born at Methodist Hospital on February 12, 2006. The next day Lynell asked Lynn Wronko, a social worker employed by Methodist whose job included discussing a child’s birth abnormalities with prospective adoptive parents, about the child’s health. Ly-nell told Wronko she had rejected at least three prospective adoptions because the adoptee might be a special needs baby, and “specifically told Ms. Wronko that she was relying on Ms. Wronko’s judgment in deciding to adopt” V.S.’ child. (Br. of the Appellants at 4.) Wronko told her the child was healthy and without any abnormalities.

On February 15, Lynell traveled to the Hospital from her home in New York and met with Wronko and Head Nurse Kash. Both knew Lynell was relying on information they provided in deciding whether to *154 adopt the child. Both assured her the child was lactose intolerant but otherwise normal. On that day V.S.’s outpatient chart included a report of a sonogram 1 ordered by the Doctor that indicated the child had a large hole in the left side of his brain, 2 a condition associated with developmental delay, retardation, paralysis, and other severe neurological defects.

The Hospital did not have a procedure to ensure that outpatient records were made part of the inpatient chart. 3 When the Jeffreys’ attorneys requested the hospital records, the hospital sent the inpatient records, which did not include the sonogram report. 4 The report had been sent to the Doctor’s office, and the Jef-freys asked for the Doctor’s records in February of 2006. However, the Doctor would not provide his records because V.S.’s medical bill was not paid.

The Jeffreys completed the adoption in August of 2006. In December of 2006, they learned the child had severe neurological deficits that would have caused them not to complete the adoption if they had known of the condition. In April of 2007, the Jeffreys received V.S.’s medical records from the Doctor, which records included the sonogram report that had been in V.S.’s outpatient chart at Methodist on February 15, 2006.

The Jeffreys commenced malpractice actions against the Doctor and the Hospital, both of which brought motions for summary judgment and for preliminary determination of law. The trial court granted summary judgment for the Hospital and partial 5 summary judgment for the Doctor.

DISCUSSION AND DECISION

Summary judgment on a motion for a preliminary determination is subject to the same standard of appellate review as any other summary judgment. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000), reh’g denied. Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is enti- *155 tied to judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Boggs, 730 N.E.2d at 695. When the moving party asserts the statute of limitations as an affirmative defense, however, and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant, here the Jeffreys, to establish an issue of fact material to a theory that avoids the defense. Id.

1. The Hospital

A. Hospital Records

The trial court determined the Hospital had no duty to provide the sonogram report to the Jeffreys because, while the Jeffreys made three requests to the Hospital for medical records, the sonogram report was “not within the description of the documents requested.” (App. at 253.) Summary judgment on that ground was error. 6

The Hospital notes that, as a covered entity under the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320 et seq., its duty, when it receives valid authorization for disclosure of protected health information, is to “make the disclosure in a manner that is consistent with the terms of the authorization.” (Br. of Appellee The Methodist Hospitals, Inc. (hereinafter “Hospital Br.”) at 11) (citing 45 C.F.R. 164.508). There was designated evidence the Hospital kept outpatient records separate from inpatient records. The outpatient records were kept in a “drop file,” (App. at 62), and inpatient records were kept in a different file. An abnormal pre-natal sonogram would be placed with the mother’s chart and not with the child’s chart.

The Hospital’s Social Services Department “has access to the entire medical record of that patient.” (Id. at 66.) The Hospital maintains a “master patient index,” (id. at 68), that “tells you that this patient has also another record and you go pull it.” (Id.) “Everything is there.” (Id. at 69.) “[S]ocial services would be given the information that [the Hospital] housed,’ ” (id. at 70), but only that information the social worker specifically requested.

The record reflects V.S. executed two authorizations for the release of medical records — one for her own records and one for the child’s records. In both, V.S. authorized the Hospital’s disclosure of “[a]ny and all medical, general ... and/or health information pertaining to [the mother or child] which is now or in the future may be in the possession or under the control of [the Hospital].” (Hospital App. at 92-93.) The Jeffreys’ counsel directed the request for those records to the Hospital’s social worker.

The Hospital has not provided a factual or legal explanation of how a sonogram report in V.S.’s outpatient file could be outside her authorization for the Hospital to release “any and all ... information” in the hospital’s possession. (Id.) We decline the Hospital’s invitation to hold, as a matter of law, that the Jeffreys had not submitted a “request for the ultrasound supported by [the mother’s] valid authorization for its release,” (Hospital Br. at 14), or that the Jeffreys “failed to exercise due diligence by requesting all of the pertinent medical records before they completed the adoption.” (Id.)

*156 B. Statements by Hospital Employees

The trial court determined Methodist was not liable for negligent misrepresentation because the Jeffreys should not have relied on general statements by the social worker and nurse. The Jeffreys argue the hospital “assumed a duty to communicate accurate and complete information” when it permitted or expected its employees to make affirmative statements about a child’s medical status. (Br. of the Appellants at 8.) The Hospital does not explicitly argue against its assumption of that duty.

Instead the Hospital argues the Jeffreys are claiming negligent misrepresentation when “Indiana law does not recognize negligent misrepresentation under circumstances like those at issue in this case.” (Hospital Br. at 15.) According to the Hospital, the Jeffreys’ claim cannot succeed because the Hospital’s nurse and social worker do not fall “within the limited class of professionals — brokers, attorneys, abstractors, and surveyors — to whom our courts have expressly applied tort liability for negligent misrepresentation,” (id. at 17), and because the Jeffreys should not have relied on the nurse’s and social worker’s statements.

We cannot say an action for negligent misrepresentation is, as a matter of law, unavailable to the Jeffreys. 7 One who,

in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Restatement (Second) of Torts § 552 (1977) (quoted in U.S. Bank, N.A. v. Integrity Land Title Corp., 929 N.E.2d 742, 747 (Ind.2010)).

In U.S. Bank, our Indiana Supreme Court addressed “whether the issuance of a title commitment and subsequently issued title insurance policy give rise in Indiana to a tort cause of action for negligent misrepresentation against a title insurer or commitment issuer, separate and apart from the contractual obligations of the title policy.” 929 N.E.2d at 746. It determined U.S. Bank’s claim could go forward:

A professional may owe a duty to a third party with whom the professional has no contractual relationship, but the professional must have actual knowledge that such third person will rely on his professional opinion. [Thomas v. Lewis Eng’g, Inc., 848 N.E.2d 758, 760 (Ind.Ct.App.2006) ] (stating that the actual knowledge prong requires contact between the professional and the third party, not mere foreseeablity that a third party may rely on the professional opinion).

Id. at 747. Therefore, Integrity had a duty under Restatement § 552 to communicate the state of a title accurately when issuing its preliminary commitment. Id. at 749.

Among the factors supporting that result were:

the relationship between Integrity and [U.S. Bank’s assignor] was of an advisory nature. Integrity had superior *157 knowledge and expertise, was in the business of supplying title information, and was compensated for the information it provided to [U.S. Bank’s assign- or]. Integrity deliberately provided specific information in response to a request by [U.S. Bank’s assignor], to guide [U.S. Bank’s assignor] in its transaction with a third party, and Integrity affirmatively vouched for the accuracy of the information. On these facts, we are convinced that applicable tort law permits U.S. Bank’s tort claim to go forward.

Id. at 750. We cannot say, in light of those factors, that an action for negligent misrepresentation was, as a matter of law, unavailable to the Jeffreys. The relationship between the Hospital and the Jeffreys might be characterized as “advisory.” The Hospital presumably had superior knowledge and expertise with regard to the information its employees gave the Jef-freys, and it “was in the business of supplying” information of that nature. There are, at the least, genuine issues as to whether the Hospital “deliberately provided specific information in response to a request by” the Jeffreys and whether it “affirmatively vouched for the accuracy of the information.”

Nor may we hold the Jeffreys’ reliance on the statements by the Hospital’s employees was, as a matter of law, unjustified. Whether reliance was justified is, on conflicting evidence, a matter for the jury to determine. Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1316 (Ind.Ct.App.1993), reh’g denied, trans. denied. But where the evidence is so clear as to be susceptible of only one reasonable inference, it is for the court to determine as a matter of law whether plaintiff was justified in relying on the representation. Id. We have accordingly found reliance not justified as a matter of law when, for example, a plaintiff relied on oral representations by agents of defendant savings and loan that were inconsistent with a written deposit agreement, Gary Hobart Savings & Loan Ass’n v. Strong, 99 Ind.App. 422, 190 N.E. 373, 374 (1934), reh’g denied, and when “the plaintiffs knew as much about the facts of the underlying transaction” as did the person making the misrepresentation. Plymale v. Upright, 419 N.E.2d 756, 768 (Ind.Ct.App.1981).

The Hospital asserts, without citation to authority, the Jeffreys’ reliance was not justifiable because “only physicians are permitted by law and qualified by training to diagnose and treat injury and illness.” (Hospital Br. at 18.) Therefore, it asserts, it cannot be “bound by a duty based on a custom and practice [that exists] only in the mind of the plaintiff.” (Id.) The Jef-freys designated evidence that it was the Hospital social worker’s responsibility to discuss significant birth abnormalities with the adoptive parents; the Jeffreys told the social worker they did not want to adopt a child with medical issues or special needs, and they needed records about the mother and child in order to make an informed decision about the adoption; the social worker had access to the medical records of the mother and the child; the Jeffreys were assured the social worker had reviewed the hospital records; they asked the nurse specific questions about the child’s health and whether there were any abnormalities; and the nurse told the Jef-freys she had reviewed the hospital records and assured them the child was “healthy and adorable.” (App. at 101.)

This is not a situation where the Jef-freys knew as much about the facts of the “underlying transaction” as did the person making the misrepresentation, as in Ply-male, or relied on oral representations that were inconsistent with other information they had, as in Gary Hobart Savings & Loan Ass’n. As there are genuine issues of *158 material fact as to whether their reliance on the statements by the nurse and social worker was justified, summary judgment for the Hospital on that basis was also improper.

2. Dr. Okolocha

The Indiana Medical Malpractice Act limitations period is two years and runs from the date of the negligent act or omission: A claim “may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect.” Ind. Code § 34-18—7—1(b). When the moving party asserts the statute of limitations as an affirmative defense and establishes that the action was commenced outside the statutory period, the burden shifts to the non-moving party to establish an issue of fact material to a theory that avoids the affirmative defense. Williams v. Adelsperger, 918 N.E.2d 440, 445 (Ind.Ct.App.2009), trans. denied. Any doubt as to a fact or an inference to be drawn is resolved in favor of the non-moving party, so in determining the discovery date of medical malpractice, we construe all facts in favor of the Jeffreys as the nonmovants. Id.

The statute requires a complaint to be filed within two years after the alleged negligent act or omission, 8 but the date on which the limitations period is activated — the “trigger date” — may in certain circumstances be deferred. Overton v. Grillo, 896 N.E.2d 499, 502 (Ind.2008), reh’g denied. A plaintiff who cannot reasonably know of the alleged malpractice within the two-year period may institute a claim for relief within two years from the trigger date. 9 Id. If a trigger date occurs before the expiration of the limitations period, the plaintiffs claim will be barred unless filing before the expiration of the *159 two-year period was not possible with reasonable diligence. Id. In any event the complaint must be filed within a reasonable period after the trigger date. Id.

The trigger date, whether before or after the expiration of the limitations period, is the point at which the plaintiff either knows of malpractice or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury. Id. The question of when a plaintiff discovers facts that, in the exercise of reasonable diligence, should lead to the discovery of medical malpractice and resulting injury is often one of fact. Williams, 918 N.E.2d at 445. But the trigger date becomes a matter of law when it is clear that the plaintiff knew, or should have known, of the alleged symptom or condition, and facts that in the exercise of reasonable diligence would lead to discovery of the potential of malpractice. Herron v. Anigbo, 897 N.E.2d 444, 450 (Ind.2008). Reasonable diligence requires more than inaction by a patient who, before the statute has expired, does or should know of both the injury or disease and the treatment that either caused or failed to identify or improve it, even if there is no reason to suspect malpractice. Id. at 449 (emphasis added).

The trial court correctly determined the Jeffreys’ claim against the Doctor was time-barred. The trial court determined the limitations period began to run

on the day of the alleged negligent act, February 1, 2006. Mr. and Mrs. Jeffrey obtained the medical records sought from Dr. Okolocha on April 5, 2007, which was within the two-year statute of limitations. Mr. and Mrs. Jeffrey then had several months to consider whether to file suit against Dr. Okolocha. Mr. and Mrs. Jeffrey filed their first amended complaint with the Department of Insurance, adding Dr. Okolocha as a defendant, on August 28, 2008.

(App. at 293.)

The Jeffreys appear to concede the Doctor provided the records April 5, 2007, and thus that was the earliest date when “there would be a possibility of knowing that a sonogram had previously revealed a birth defect.” (Br. of the Appellants at 17.) If April 5, 2007, was the “trigger date,” the Jeffreys could have filed their claim within the two-year limitations period, which ended January 31, 2008. Thus, the Jeffreys’ claim will be barred unless filing before February 1, 2008 was not possible with reasonable diligence. See Overton, 896 N.E.2d at 502.

The Jeffreys assert “it is neither realistic nor reasonable to assume that [April 5] should be deemed the trigger date.” (Br. of the Appellants at 17.) They offer no legal authority to support their argument why the trigger date was sometime after April 5, nor do they explain when it might have been. They have accordingly waived that argument for appeal. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.”).

We must therefore determine whether the Jeffreys were reasonably diligent in their efforts to file their action within the limitations period. They were not. Reasonable diligence “requires pursuing the facts to determine whether there is a claim,” Herron, 897 N.E.2d at 449, and requires “more than inaction by a patient ... even if there is no reason to suspect malpractice.” Id. A plaintiff is obliged to “inquire into the possibility of a claim with *160 in the remaining limitations period, and to institute a claim within that period or fore-go it.” Id.

The Jeffreys note the records the Doctor finally released “did not contain any clinical reference to [the child’s] brain abnormality,” (Br. of the Appellants at 17), but the Jeffreys concede they had “learned of the possibility of [the child’s] dire medical condition on December 10, 2006.” (Id.) They asked other physicians who had treated the child what caused the brain abnormality and were told it was congenital and nothing could have been done to prevent it.

The Jeffreys did not make a reasonably diligent effort to file within the approximately ten months remaining in the limitations period. To the extent the Jeffreys’ allegation of malpractice is premised on the Doctor’s failure to provide the sonogram, they became aware of that malpractice when he provided the record within the limitations period. If the malpractice they allege is the Doctor’s failure to include with the sonogram any clinical reference to the child’s brain abnormality, that failure was apparent when the records were provided, because the Jeffreys had, by that time, been aware for some four months of “the possibility of [the child’s] dire medical condition.” (Id. at 17.)

As the Jeffreys did not file their complaint within a reasonable period after the trigger date, the Doctor was entitled to partial summary judgment.

CONCLUSION

We affirm partial summary judgment for Dr. Okolocha, as the complaint against him was filed too late. We reverse the summary judgment for the Hospital and remand, as there are genuine issues of fact as to the Hospital’s duty to provide the records the Jeffreys requested and whether its employees negligently misrepresented the child’s status.

Affirmed in part, reversed in part, and remanded.

Andersen, J.

Facts of Case

At issue in this case is whether a real estate broker1 is liable for innocently misrepresenting a material fact about real estate to a buyer.

In January 1983, Bryan G. and Connie J. Connall, hereinafter referred to as the sellers, signed a listing agreement with Cardinal Realty, Inc. and Charles Huggins, an associate broker with Cardinal Realty. The sellers wanted to sell 5 acres of land north of Spokane. A few days after signing the listing agreement, one of the sellers showed the property to the Cardinal broker. The seller pointed to a stake or piece of pipe as the southeast corner of the property, and the broker saw that the stake lined up with an old fence line to apparently form the east boundary. The sellers had built a new fence approximately 6" inside the old fence line and a corral and horse shed stood just inside the new fence. The seller insisted that his corral was inside the property line.

The seller then showed the broker a wooden stake, which he said marked the southwest corner of the property. The broker saw that the stake was in line with a row of poplar trees that evidently formed the west boundary. To the north of the trees was a pole that apparently was near the northwest corner. The seller could not find the stake marking the northwest corner of the property, and the two men *71felt they were close to but could not exactly locate the northeast boundary.

The broker later stated that the seller "was very emphatic about what he bought and where he built", and never gave the broker any indication that the boundaries he pointed out were incorrect. The seller told the broker that the property had been surveyed before he and his wife bought it. The broker did not verify that statement.

James and Verna Hoffman, the buyers herein, read about the property in the newspaper. The property's improvements — corral, cattle chute, barn and shed — were important to the buyers because they owned a horse and wanted to get involved with 4-H horse activities. They called the broker and visited the property with him. He pointed out the fence as the east boundary, and the pole as the northwest boundary. He gave an approximate indication of the northeast corner but could not find the marker for the southwest corner. The broker later testified that in telling the buyers about the property, "there was no doubt in my mind of where the proper property line was". The broker did not recommend that the buyers obtain a survey.

The buyers bought the property on February 28, 1983. In May 1983 a neighbor told them that a recent survey showed that their east fence encroached upon his property. The buyers had their own survey done and discovered that their east-side improvements encroached upon their neighbor's property by 18 to 21 feet. The encroachment consisted of the fence built by the sellers and part of the corral, cattle run and horse shed. The buyers discovered it would cost almost $6,000 to move the improvements onto their own property.

On September 18, 1984, the buyers brought an action for damages against the sellers and the broker, alleging that they misrepresented the true boundary lines. Following a bench trial, the trial court found as a fact that there was nothing to give the broker or the sellers notice that anything was wrong with the property lines. The court concluded that the broker did not breach the standard of care of a reasonably prudent real estate broker, and that the *72sellers were not liable since they were unaware of any problem with the boundaries as represented. A judgment of dismissal was thereupon entered against the buyers.

The Court of Appeals reversed, holding that an owner of realty who innocently misrepresents its boundaries is liable to the purchaser.2 The court then extended liability for innocent misrepresentation to an owner's real estate agent and, in the alternative, held that the broker breached his duty to take reasonable steps to avoid disseminating false information to buyers.3 The seller did not appeal the Court of Appeals decision. Thus, the question of the owner's liability is not before this court. The broker and the real estate company sought review of the Court of Appeals decision and we granted review pursuant to RAP 13.4(b). Two principal issues are presented.

Issues

Issue One. Should a real estate broker be held liable for innocently misrepresenting a material fact to a buyer of real property?

Issue Two. Was the broker negligent in failing to verify the sellers' statements concerning the property's boundaries?

Decision

Issue One.

Conclusion. A real estate broker is held to a standard of reasonable care and is liable for making "negligent", though not "innocent", misrepresentations concerning boundaries to a buyer.

The Restatement (Second) of Torts defines the tort of innocent misrepresentation as follows:

Misrepresentation in Sale, Rental or Exchange Transaction

(1) One who, in a sale, rental or exchange transaction with another, makes a misrepresentation of a material fact for the purpose of inducing the other to act or to refrain from acting in reliance upon it, is subject to lia*73bility to the other for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation, even though it is not made fraudulently or negligently.

Restatement (Second) of Torts § 552C(1) (1977).

The Restatement, however, leaves open the question of whether such a cause of action lies against real estate brokers.* 4 While the Court of Appeals in Hoffman was the first Washington court to apply § 552C to brokers, prior established Washington case law recognizes a cause of action against owners who innocently misrepresent the boundaries of their property to a purchaser.5 Owners are liable for such misrepresentations because they are presumed to know the character and attributes of the land which they convey.6

We recognize that some other jurisdictions have agreed with the viewpoint of the Court of Appeals in this case and have held real estate brokers liable for making innocent misrepresentations on which buyers justifiably rely.7 Courts that so hold do so because of their belief that the innocent buyer's reliance tips the balance of equity in favor of the buyer's protection. The courts justify placing the loss on the innocent broker on the basis that the broker is in a better position to determine the truth of his or her representations.8

This approach has been criticized for imposing a standard of strict liability for all misrepresentations that a broker might make or communicate, however innocent, in a *74real estate transaction.9 Another commentator observes the obvious — that there is a problem with subjecting brokers to liability for innocent misrepresentations without imposing a corresponding duty of inspection for defects, and that without such a duty, a broker may be tempted to provide less information to a buyer, fearing that his or her chances of exposure to liability for innocent misrepresentations will multiply with the quantity of information provided.10

At the other end of the spectrum from liability for innocent misrepresentation is the view that a real estate broker is an agent of the seller, not of the buyer, and is protected from liability under agency law.11 Thus, an agent would be permitted to repeat misinformation from his principal without fear of liability unless the agent knows or has reason to know of its falsity.12 This principle has been upheld by approximately half the jurisdictions that have addressed the issue of broker liability for innocent misrepresentations.13 The Supreme Court of Vermont recently reaffirmed this rule, holding that " [r]eal estate brokers and agents are marketing agents, not structural engineers or contractors. They have no duty to verify independently representations made by a seller unless they are aware of facts that 'tend to indicate that such representation [s are] false."'14

*75A recent decision of our Court of Appeals declared a middle ground that we find persuasive. At issue in Tennant v. Lawton, 26 Wn. App. 701, 615 P.2d 1305 (1980) was a broker's liability for misrepresenting that a parcel of land could support a sewage system and thus was "buildable". The Tennant court echoed the Vermont court in holding that a broker is negligent if he or she repeats material representations made by the seller and knows, or reasonably should know, of their falsity.15 The court went on, however, to hold that a broker has a limited duty toward a purchaser of real property.

The underlying rationale of [a broker's] duty to a buyer who is not his client is that he is a professional who is in a unique position to verify critical information given him by the seller. His duty is to take reasonable steps to avoid disseminating to the buyer false information. The broker is required to employ a reasonable degree of effort and professional expertise to confirm or refute information from the seller which he knows, or should know, is pivotal to the transaction from the buyer's perspective.

(Citations omitted.) Tennant, at 706; see also McRae v. Bolstad, 32 Wn. App. 173, 646 P.2d 771 (1982), aff'd, 101 Wn.2d 161, 676 P.2d 496 (1984).

We perceive no persuasive reason to hold real estate brokers to a higher standard of care than other professionals must satisfy. We have held that lawyers must demonstrate "'that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction.'"16 Chiropractors and other drugless healers owe their patients a duty to exercise reasonable care in diagnosing and treating them.17 RCW 7.70.040(1) requires physicians *76and surgeons to adhere to a standard of reasonable prudence.18

Of relevance in this connection is RCW 18.85.230(5), which provides that a real estate license may be suspended or revoked if the holder is found guilty of

Knowingly committing, or being a party to, any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme or device whereby any other person lawfully relies upon the word, representation or conduct of the licensee;

(Italics ours.) Under this statute, a broker is only guilty of knowingly committing a misrepresentation. Consistent with this reading is one that would similarly find liability only when a broker is a knowing party to a misrepresentation.

Absent a legislative directive to the contrary, we do not consider it appropriate to impose liability on a real estate broker without a similar requirement of knowledge. Knowledge,- or any reasonable notice, that the boundaries pointed out by the seller were incorrect is absent in this case, as the trial court found in its findings of fact. The following findings by the trial court are illustrative:

There was no evidence on the property which suggested to [the broker] he should investigate the boundary lines further.[19]

There was nothing in the surrounding circumstances that would have put [the broker] ... on notice that there may have been something wrong with the property lines.[20]

This broker was thus not the guarantor of the seller's representations. If the buyers had wanted full protection against potential defects or misrepresentations, they could *77have purchased appropriate title insurance.21 The standard title insurance policy, however, usually does not require a survey and thereby does not guarantee that the purported boundaries are correct.22 To obtain such coverage, the buyers could have purchased an extended coverage policy that usually requires a survey.23 Such a policy affords a buyer greater protection than the standard policy.

While a broker must be alert to potential misrepresentations made by a seller, we decline to hold that a broker must guarantee every statement made by the seller. Nor, however, can a broker relay false information to a buyer without fear of liability. The trial court did not err in concluding as follows:

A real estate broker must take reasonable steps to avoid disseminating false information to buyers. The broker is required to make reasonable efforts and use his [or her] professional expertise to confirm or refute information from a seller which he [or she] knows is pivotal to the buyer.24

A real estate broker must exercise the degree of care that a reasonably prudent broker would use under all of the circumstances. [25]

In short, a real estate broker must act as a professional, and will be held to a standard of reasonable care. If a broker willfully or negligently conveys false information about real estate to a buyer, the broker is liable therefor. We decline, however, to turn this professional into a guarantor. Real estate agents and brokers are not liable for innocently *78and nonnegligently conveying a seller's misrepresentations to a buyer.

Issue Two.

Conclusion. The broker did not breach the standard of care of a reasonably prudent broker.

In Tennant, the court found that the real estate broker failed to exercise due care to verify the "critical contingency" of an approved septic tank site on the property.26 When the broker asked the owner for evidence of an approved percolation site evaluation for the property, the owner produced two applications for perc hold permits and asked the broker to see if they had expired. The broker reported that the applications had expired and promised to renew them. The applications stated on their face that they were for adjoining 2%-acre parcels rather than the 6-acre parcel at issue. The broker neglected to read them, to renew them, or even to check on the site evaluation, even though the buyers had made an approved septic tank site an express condition of their offer. While the broker in Tennant acted without malice or fraudulent intent,

she failed to take the simple steps within her area of expertise and responsibility which would have disclosed the absence of any health district approved site on the subject property. This failure constituted negligence as a matter of law which resulted in damages to the Tennants.

Tennant, at 707-08.

In the present case, the improvements on the property were important to the buyers because they wanted to raise and ride horses. The broker saw markers for some of the boundaries when he walked the property with the seller, but could not locate all of the boundaries with certainty. Trees and other physical features on the land supported the sellers' representations regarding the boundaries, however, and the broker testified that the seller assured him that the improvements were inside the prop*79erty line. The trial court accepted this testimony, as it was entitled to do as the fact finder in a bench trial, and expressly found that "there was absolutely nothing, I think, that would have put [the broker] ... on notice that there may have been something wrong with the property line that imposed a duty to ... do anything further than [he] did do in this case."27

The trial court is sustainable in its view that, contrary to the broker in Tennant, the broker in this case had no notice that anything was wrong with the boundaries as represented by the sellers. While hindsight suggests that the broker would have done well to check on the alleged survey, there was no testimony that such a cheek was the prevailing practice in the real estate business. Moreover, natural and man-made boundaries reinforced the sellers' representations concerning the legal boundaries. Accordingly, the trial court did not err in finding and concluding that the broker in this case was not negligent.

Our resolution of these issues disposes of the other issues raised. The Court of Appeals decision overturning the trial court's decision on the broker's liability is incorrect.

Reversed.

Dore, J.

(dissenting) — Contrary to the majority, I believe that a broker should be liable for any material misrepresentation he or she makes which induces buyers to act to their detriment. Furthermore, even applying the majority's far more lax standard of care, I would find the broker liable in this case. Therefore, I dissent.

Liability for "Innocent" Misrepresentations

The majority discusses whether or not brokers should be held liable for innocent misrepresentations and concludes that brokers need only "take reasonable steps to avoid dis*80seminating to the buyer false information." Majority, at 75, quoting Tennant v. Lawton, 26 Wn. App. 701, 615 P.2d 1305 (1980). The most recent commentary on this issue has concluded the opposite.

Upon comparison of the strengths and weaknesses of the current legal views, the approach which appears to most effectively balance the equities between broker and buyer is one which recognizes realtor liability for innocent misrepresentation, as well as a limited and clearly defined realtor duty of inspection for defects.

Note, Realtor Liability for Innocent Misrepresentation and Undiscovered Defects: Balancing the Equities Between Broker and Buyer, 20 Val. U. L. Rev. 255, 271 (1986). I concur with this second view.

Washington courts have long held that a seller of land is always liable for misrepresentations, regardless of whether they are innocently or negligently made. Lawson v. Vernon, 38 Wash. 422, 80 P. 559 (1905); McRae v. Bolstad, 32 Wn. App. 173, 177, 646 P.2d 771 (1982). The basis for this rule is the belief that the owners are presumed to know the attributes and specifications of their property. Hoffman v. Connall, 43 Wn. App. 532, 538, 718 P.2d 814 (1986). I agree with this rule and I see no reason not to apply this logic to brokers. Brokers possess more knowledge than buyers about the attributes of the property to be sold, and innocent buyers should be able to rely on representations made by the broker. I would follow the increasing trend of state courts to impose liability on real estate brokers for any kind of misrepresentation. Note, 20 Val. U. L. Rev., at 271. See, e.g., Bevins v. Ballard, 655 P.2d 757 (Alaska 1982); Gauerke v. Rozga, 112 Wis. 2d 271, 332 N.W.2d 804 (1983).

In this case, both the majority and I conclude that the broker made a material misrepresentation which induced the Hoffmans to purchase the land, and that as a result, the Hoffmans incurred significant damages. The broker represented the property line to be located some 20 feet from where it actually was; consequently the corral, cattle run and horse shed all had to be moved so as not to encroach *81on their neighbor's land. Even if the majority is correct and this misrepresentation was innocently, and not negligently, made — a conclusion I dispute — I would still hold the broker liable. Between innocent purchasers, who may justifiably rely on the broker's knowledge and expertise, and a broker, who is in a far better position to check the accuracy of any purported boundary lines, I believe the broker should be liable for any misrepresentation as to the boundary's location. Equity demands such a result.

The Tennant Approach

The majority cites Tennant v. Lawton, 26 Wn. App. 701, 615 P.2d 1305 (1980) for the proposition that the rule of law should be "that the broker is liable because of material representations of the principal if he repeats them and knows, or reasonably should know, of their falsity." Tennant, at 706. While I note in passing that this decision is in conflict with our earlier decision in Lawson v. Vernon, supra, I believe that even following the rule set forth in Tennant, the broker in this case should still be liable.

The broker in this case testified that Mr. Connall was emphatic about the boundary of his property and that an earlier survey had indicated that his property ended just to the east of where he built his fence. Report of Proceedings, at 167-68. Nevertheless, an expert witness testified that any such survey would be a public record, and that no survey had been made of this property. Report of Proceedings, at 25. While under the standard of care propounded by the majority, a reasonably prudent broker would not be required to verify the accuracy of Connall's comments by a detailed investigation of the survey that Connall believed had been completed, the broker should at least verify the existence of the survey. This he did not do, and this failure, even under the majority's standard of care, was a breach of the duty "to take reasonable steps to avoid disseminating to the buyer false information." Tennant, at 706. Thus, even under the majority's more lax standard of care, the broker was negligent, and therefore, liable for the damages to the Hoffmans.

*82Conclusion

I believe the majority ignores the equities of the broker-buyer relationship by allowing brokers to misrepresent material aspects of the property in question with impunity unless the buyer demonstrates that the broker knew or should have known of the statement's falsity. As between an innocent buyer and an innocent broker, I believe the buyer should prevail. Even following the majority's proposed standard of care, if a seller bases his belief of the location of the property line on a prior survey, I believe that a reasonably prudent broker would verify the purported survey does in fact exist. Failure to make this simple inquiry is negligence and actionable even under the majority's reasoning. I therefore dissent.

I would uphold the Court of Appeals decision in favor of the Hoffmans, and would remand for determination of damages.

Reconsideration denied June 18, 1987.