concurring.
I agree with the result found in the majority opinion pursuant to which the judgment in favor of the Clarks is affirmed. For myself, I would be willing to affirm that judgment on the ground that the theory of negligent misrepresentation and the theory of innocent misrepresentation should have been disposed of by summary judgment. I say that because recovery under both theories is limited to those to whom the maker of the statement intends that it be communicated. Further, both theories require reliance upon the information communicated by the party seeking recovery. Finally, both theories depend upon inaccurate information being communicated, and none was in this instance.
After trial, the information found in this record is not substantially different from that presented to the district court in support of, and opposition to, the Clarks' motion for summary judgment. I am persuaded that there was no genuine issue as to any material fact. In granting a trial by denying the Clarks’ motion for summary judgment on the issue of negligent misrepresentation, I believe the district judge was being generous, perhaps to the point of indulgence, to the Epples.
While the theory ultimately asserted in this court is that of innocent misrepresentation, as encompassed in the Restatement (Second) of Torts § 552C (1977), the theory apparently presented to the district court, because it was the one preserved for trial, was negligent misrepresentation as found in Restatement (Second) of Torts § 552. That theory, like all misrepresentation theories, assumes that false information was supplied to another who incurred loss because of his justifiable reliance upon the information. Duffy v. Brown, 708 P.2d 433 (Wyo.1985). See Rocky Mt. Helicopters, Inc. v. Air Freight, Inc., 773 P.2d 911 (Wyo.1989).
The possibilities for supplying false information are limited by this record to only two events. The first of those was the listing by the Clarks of the property with Carroll Realty. The second was in the contract with Merrill Lynch Relocation Management, Inc. (ML). As to the listing with Carroll Realty, no liability could flow because of the limitation set forth in the Restatement (Second) of Torts § 552(2), which reads as follows:
“(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
“(a) by the person or one -of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
“(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.”
The listing with Carroll Realty expired substantially prior to any involvement of the Epples with the property, and logic teaches that the Epples could not have been contemplated as members of any limited group of persons for whose benefit and guidance Clarks may have furnished the information in the listing. If that limitation in the Restatement (Second) of Torts has any significance, then that group, as a matter of *683law, would be limited to those to whom Carroll Realty might offer the property pursuant to the listing.
The statement in the contract with ML might survive the limitation found in Restatement (Second) of Torts § 522(2) because one could infer from the record that the Clarks understood that ML would resell the property to someone. With respect to negligent representation, however, the definition of the tort assumes reliance upon the information, and the record is clear that, prior to the purchase, the Epples had no information relating to the contract between the Clarks and ML. They could not rely upon it. Furthermore, the record is equally clear that, in offering to purchase the property, the Epples reserved the right to have the property examined by their own engineering representative and that right, in fact, was exercised. The Epples’ engineer reported no defects in the property, and the Epples, if they relied on anything, must have relied upon their engineer’s report and not on the Clarks’ statements.
Turning then to the theory of innocent misrepresentation, to which the Epples have shifted in this appeal, the Restatement (Second) of Torts § 552C also requires justifiable reliance upon a misrepresentation. As the majority opinion correctly notes, the application of that provision is limited to the immediate parties to the sale. Of more significance to me, however, is the fact that the Epples, as noted above, did not rely upon any representation by the Clarks. They relied upon the report of their engineer, and that report has an interesting significance in this ease.
The Epples’ engineer was never a party to this litigation. This omission is puzzling because the engineer, in effect, made the same representation that the Epples claim the Clarks made. That singular circumstance causes me to inquire, “what defect?” There was water in the basement twice while Clarks owned the property. On one occasion, a power failure caused by a storm prevented a sump pump from operating that otherwise would have kept the water from rising into the basement. That circumstance hardly seems to encompass a defect in the property. On another occasion, a neighboring landowner created what was an underground flood by over-irrigation of his property. The fact that water came into the basement as a result of a flood does not demonstrate a defect in the property. Instead, the record shows that normal and prudent measures were taken with respect to the construction of a dwelling in an area in which there was, on occasion, a high water table. The installation of a sump and the utilization of a sump pump to address that problem does not constitute a defect, patent or latent. Instead, it manifests a prudent construction design with the goal of avoiding damage to the property because of water rising into the basement. My analysis of these circumstances leads to the conclusion that the Epples’ engineer correctly advised them that there was no defect in the property, and that is why he was not a party to the litigation.
The result then, as the progression clearly manifests, is that the only possibility for recovery from the Clarks was to turn to a remedy that is described in this way:
“ * * * ^ ig a ruje 0f strict liability for innocent misrepresentation of a material fact, made to another in a sale, rental or exchange transaction.” Restatement (Second) of Torts § 552C comment a. at 142.
The Epples mistakenly conclude that the theory of innocent misrepresentation makes the Clarks an insurer with respect to the property. The thrust of the Epples’ ultimate position is that the Clarks are liable because they owned the house at an earlier time. I do not believe that Wyoming is prepared to adopt that rule. It goes so far beyond our cases describing an implied warranty of habitability that those cases would have no future application. In recognizing the implied warranty of habitability, this court has gone as far as may be necessary to justify relief to subsequent purchasers of dwellings. It is important to remember that the Epples presented a warranty theory to the trial court; a summary judgment was entered against them with respect to it; and, in this appeal, they have *684failed to prosecute any claim of error relating to that theory.
I agree that the' decision of the trial court should be affirmed, but I would affirm it on these additional grounds as well as that set forth in the majority opinion.