One of the biggest trends in nursing home litigation has been changing poor care negligence cases into commercial large-scale consumer fraud cases. The bases of these claims all hinge on advertising material produced by the nursing home. This series of articles will discuss various claims that may be possible based on false, misleading or inaccurate statements made about a particular facility. First, some marketing professionals are under the misimpression that statements made as an opinion or as advertising “puffery” cannot be actionable; statements like “in my opinion this facility offers the best wound care in the county” could result in liability under the right circumstances.

An example of vague statements being actionable was decided by the Nebraska Supreme Court in Henderson v. Forman, 231 Neb. 440, 436 N.W.2d 526 (1989). The case arose out of the purchase of the Candlelight Inn in Scottsbluff. The buyer contended the seller had told him the roof was “in good shape,” “there were no problems” and a drainage system would keep moisture out of the basement, but after the purchase, design defects in the roof and the drainage system resulted in serious water problems. The Nebraska Supreme Court held that the seller’s statements that the roof was “in good shape” and the drains would keep the basement dry could be actionable. The court stated:

[I]n this case the statement was more than a guess. Forman said the roof “was in good shape [and] there were no problems,” and this in the face of his knowledge that one of the roofing experts had said that the roof needed replacing. (Emphasis supplied.)

Id. at 448, 436 N.W.2d at 432. The court found the seller’s statements about the drainage system keeping water out of the basement were in a “similar category”; he had said the drainage system would protect the basement from excessive moisture, which was false. Under these circumstances, the statements could be actionable.

Jeanelle R. Lust