Keller v. A.O. Smith Harvestore Prods., Inc., 819 P.2d 69 (Colo. 1991). · Go Syfert
Keller v. A.O. Smith Harvestore Prods., Inc., 819 P.2d 69 (Colo. 1991). Cases Citing This Book View Copy Cite
“he terms of a contract intended to represent a final and complete integration of the parties' agreement are enforceable and parol evidence offered to establish the existence of prior or contemporaneous agreements is inadmissible to vary the terms of such contract.”
185 citation events (135 in the last 25 years) across 26 distinct courts.
Strongest positive: City of Fort Collins v. Open International (ca10, 2025-07-23)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) City of Fort Collins v. Open International (2×) also: Cited as authority (rule)
10th Cir. · 2025 · quote attribution · 1 verbatim quote · confidence high
laims of negligent misrepresentation are based not on principles of contractual obligation but on principles of duty and reasonable conduct.
examined Cited as authority (verbatim quote) Harriman v. Smart
D. Colo. · 2024 · quote attribution · 1 verbatim quote · confidence high
he terms of a contract intended to represent a final and complete integration of the parties' agreement are enforceable and parol evidence offered to establish the existence of prior or contemporaneous agreements is inadmissible to vary the terms of such contract.
discussed Cited as authority (verbatim quote) McLaughlin Group, Inc. v. American Manufacturing & Machine, Inc.
D. Colo. · 2022 · quote attribution · 1 verbatim quote · confidence high
we conclude that the definition of negligent misrepresentation contained in section 552(1) is persuasive and controls the resolution of the legal issues presented in this case
discussed Cited as authority (verbatim quote) AECOM Technical Services, Inc. v. Flatiron AECOM, LLC
D. Colo. · 2021 · quote attribution · 1 verbatim quote · confidence high
claims of negligent misrepresentation are based not on principles of contractual obligation but on principles of duty and reasonable conduct
discussed Cited as authority (verbatim quote) Allred v. Innova Emergency Medical Associates, P.C.
D. Colo. · 2020 · quote attribution · 1 verbatim quote · confidence high
integration clauses generally permit contracting par- ties to limit future contractual disputes to issues relating to the recipro- cal obligations expressly set forth in the executed document.
examined Cited as authority (verbatim quote) Van Rees v. Unleaded Software, Inc. (2×) also: Cited as authority (rule)
Colo. Ct. App. · 2013 · quote attribution · 1 verbatim quote · confidence high
contracting party's negligent misrepresentation of material facts pri- or to the execution of an agreement may provide the basis for an independent tort claim asserted by a party detrimentally relying on such negligent misrepresentations.
examined Cited as authority (verbatim quote) Donatelli v. D.R. Strong Consulting Engineers, Inc.
Wash. · 2013 · quote attribution · 1 verbatim quote · confidence high
a contracting party's negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim asserted by a party detrimentally relying on such negligent misrepresentations
examined Cited as authority (verbatim quote) Donatelli v. D.R. Strong Consulting Eng'rs, Inc.
Wash. · 2013 · quote attribution · 1 verbatim quote · confidence high
a contracting party's negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim asserted by a party detrimentally relying on such negligent misrepresentations
discussed Cited as authority (verbatim quote) A Good Time Rental, LLC v. First American Title Agency, Inc. (2×) also: Cited as authority (rule)
Colo. Ct. App. · 2011 · quote attribution · 1 verbatim quote · confidence high
a contracting party's negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim
discussed Cited as authority (verbatim quote) DM Capital, Inc. v. Gronewoller (In Re Mascio)
D. Colo. · 2011 · signal: see · quote attribution · 1 verbatim quote · confidence high
the parol evidence rule ... ha no force in a tort action alleging fraudulent misrepresentation in the inducement to execute an agreement.
examined Cited as authority (verbatim quote) URS Group, Inc. v. Tetra Tech FW, Inc.
Colo. Ct. App. · 2008 · quote attribution · 1 verbatim quote · confidence high
contracting party's negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim asserted by a party detrimentally relying on such negligent misrepresentations.
examined Cited as authority (rule) Schmitz v. BBVA (3×) also: Cited "see"
Colo. Ct. App. · 2025 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 74 (Colo. 1991) (contract provisions purporting to prohibit claims of negligent misrepresentation “must be couched in clear and specific language”); Jones, 623 P.2d at 376 (limitations on liability must be “expressed in clear and unambiguous language”). ¶ 36 For his part, Judge Prince focused on the sentences disclaiming lender liability for “approv[ing]” builder or for borrowers’ decision to contract with builder, unmooring that language from the surrounding context about insurance coverage and construction but interpreting it alongsi…
discussed Cited as authority (rule) Goodwind Development Corporation, Plaintiff-Counterclaim Defendant-Appellant/Cross-Appellee v. West Bay Corporation and 21st Century Corporation, Defendants-Counterclaimants-Appellees/Cross-Appellants
Guam · 2025 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 73 (Colo. 1991) (en banc) (holding that parol evidence rule is rule of substantive contract law and does not apply to tort actions in Colorado); Wilburn v. Stewart, 794 P.2d 1197, 1199 (N.M. 1990) (“[P]arol evidence is admissible to show any misrepresentations that induced the parties to contract . . . .”); Gilliland v. Elmwood Props., 391 S.E.2d 577, 580-81 (S.C. 1990) (adopting Formento’s reasoning); Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 748 (Ala. 1990) (“[T]he parol evidence rule applies to contract actions, not actions in t…
discussed Cited as authority (rule) Archuleta v. AMF Bowling Centers, Inc.
D. Colo. · 2025 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 73 (Colo. 1991) (negligent misrepresentation is a tort claim based “not on principles of contractual obligation but on principles of duty and reasonable conduct”).
cited Cited as authority (rule) V&H v. Beardsley
Colo. Ct. App. · 2025 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo. 1991).
discussed Cited as authority (rule) RedGuard, LLC v. Boxwell, LLC
D. Kan. · 2024 · confidence medium
Smith Harvestore Prod., Inc., 819 P.2d 69, 74 (Colo. 1991)); but see Cabinet Distributors, Inc. v. Redmond, 965 S.W.2d 309, 314 (Mo. Ct. App. 1998) (holding integration clauses cannot prevent claims for negligent misrepresentation as well as fraud). 40 See, e.g., Alires v. McGehee, 277 Kan. 398 , 85 P.3d 1191 , 1198–99 (2004) (“This conclusion is consistent with the majority rule that an ‘as is’ provision in a real estate contract does not bar a buyer's claim based on fraud or intentional misrepresentation.”); Phillips, 129 P.3d at 659 ; Hamtil v. J.C.
examined Cited as authority (rule) LBI v. Scanlan (4×) also: Cited "see"
Colo. Ct. App. · 2024 · confidence medium
Smith Harvestore Prods., Inc. , 819 P.2d 69, 74 (Colo. 1991) (negligent misrepresentation); see , e.g. , Colo. Coffee Bean, LLC v. Peaberry Coffee Inc. , 251 P.3d 9 , 17 -21 (Colo. App. 2010) (fraudulent disclosure and negligent misrepresentation).
examined Cited as authority (rule) LBI v. Scanlan (4×) also: Cited "see"
Colo. Ct. App. · 2024 · confidence medium
Smith Harvestore Prods., Inc. , 819 P.2d 69, 74 (Colo. 1991) (negligent misrepresentation); see , e.g. , Colo. Coffee Bean, LLC v. Peaberry Coffee Inc. , 251 P.3d 9 , 17 -21 (Colo. App. 2010) (fraudulent disclosure and negligent misrepresentation).
cited Cited as authority (rule) Azar v. McKey
D. Colo. · 2024 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo. 1991)).
cited Cited as authority (rule) Agri-Systems v. Structural Technologies, LLC
D. Colo. · 2023 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo. 1991).
examined Cited as authority (rule) 1881 Extraction Company LLC v. Kiinja Corporation (3×) also: Cited "see, e.g."
D. Colo. · 2023 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo. 1991).
discussed Cited as authority (rule) KCooper Brands, Inc. v. Ezzigroup Inc.
D. Colo. · 2022 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72-73 (Colo. 1991) (stating the general rule that a general integration clause does not bar a claim for negligent or fraudulent misrepresentation).
cited Cited as authority (rule) Cahey v. International Business Machines Corporation
N.D. Ga. · 2020 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 74 (Colo. 1991))); Student Mktg.
cited Cited as authority (rule) Cahey v. International Business Machines Corporation
D. Colo. · 2020 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 74 (Colo. 1991))); Student Mktg.
cited Cited as authority (rule) Calvert v. Mayberry
Colo. · 2019 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 75 (Colo. 1991) (Rovira, C.J., dissenting)).
cited Cited as authority (rule) Ravenstar, LLC v. One Ski Hill Place, LLC
Colo. · 2017 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 75 (Colo. 1991) (Rovira, C.J., dissenting).
cited Cited as authority (rule) Van Rees v. Unleaded Software, Inc.
Colo. · 2016 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo. 1991), Accordingly, we reverse the court of appeals' judgment as to the tort claims.
discussed Cited as authority (rule) 9586 LLC v. Great American Group LLC (In re Abound Solar Manufacturing, LLC)
Bankr. D. Del. · 2016 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo.1991) (stating that it is “clear that a contracting party’s negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim asserted by a party detrimentally relying on such negligent misrepresentations”).
cited Cited as authority (rule) Steak n Shake Enterprises, Inc. v. Globex Co.
D. Colo. · 2015 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo.1991).
cited Cited as authority (rule) Kostyszyn v. Martuscelli
Del. Super. Ct. · 2015 · confidence medium
Smith Harvestore Products, Inc., 819 P.2d 69, 73 (Colo. 1991)) (recognizing implied covenant of good faith and fair dealing). 30 See Baker v. Sun Co., 985 F. Supp. 609, 610 (D.
cited Cited as authority (rule) Gorsuch, Ltd., B.C. v. Wells Fargo National Bank Ass'n
10th Cir. · 2014 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 73 (Colo.1991) (en banc) (determining a negligent misrepresentation claim was based on a violation of a duty independent *1242 of a contract)).
discussed Cited as authority (rule) Gattis v. McNutt
Colo. Ct. App. · 2013 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 73 (Colo.1991) (negligent misrepresentation is a tort claim based "not on principles of contractual obligation but on principles of duty and reasonable conduct")); see also United Int'l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207 , 1227 (10th Cir. 2000) (plaintiff's "fraud claim, although premised on representations made in the course of contractual negotiations, likewise arose independently of the contract") (applying Colorado law).
discussed Cited as authority (rule) Ayu's Global Tire v. Big O Tires CA2/4
Cal. Ct. App. · 2013 · confidence medium
Smith Harvestore Products (Colo. 1991) 819 P.2d 69, 72-73 (Keller).) The rule thus prevents parties from asserting breach of contract claims predicated on alleged obligations not stated in the relevant integrated agreement.
discussed Cited as authority (rule) Carroll Co. v. Sherwin-Williams Co.
D. Maryland · 2012 · confidence medium
Id. at 78. 10 As the Complaint pleads sufficient facts to satisfy Rule 9(b) and the alleged misrepresentations are sufficient statements on which to base causes of action for fraud, the Court will deny Defendant’s motion as to Counts III and IV.
cited Cited as authority (rule) Agile Safety Variable Fund, L.P. v. RBS Citizens, N.A.
D. Colo. · 2011 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo.1991).
discussed Cited as authority (rule) Colorado Coffee Bean, LLC v. Peaberry Coffee Inc. (2×)
Colo. Ct. App. · 2010 · confidence medium
Smith Harvestore Products, Inc., 819 P.2d 69, 73-74 (Colo.1991), the court held that "a general integration clause does not effect a waiver of a claim of negligent misrepresentation not specifically prohibited by the terms of the agreement," but left open the possibility that a clause "couched in clear and specific language" could protect a party from such a claim.
discussed Cited as authority (rule) Ivar v. Elk River Partners, LLC
D. Colo. · 2010 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 73-74 (Colo.1991) (negligent misrepresentation); Colo. Coffee Bean, LLC v. Peaberry Coffee, Inc., —— P.3d -, -, 2010 WL 547633, at *6 (Colo.App.2010) (fraudulent nondisclosure); Student Marketing Group, Inc. v. College P’ship, Inc., 247 Fed.Appx. 90 , 99 & n. 9 (10th Cir.2007) (negligent misrepresentation).
cited Cited as authority (rule) Steele v. Allen
Colo. Ct. App. · 2009 · confidence medium
Smith Harvestore Prods., Inc., 819 P2d 69, 72 (Colo.1991); First Nat'l Bank v. Collins, 44 Colo.App. 228, 230 , 616 P.2d 154, 155 (1980).
discussed Cited as authority (rule) Level 3 Communications, LLC v. Liebert Corp. (2×)
10th Cir. · 2008 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 73 (Colo.1991)).
cited Cited as authority (rule) Robinson v. Colorado State Lottery Division
Colo. · 2008 · confidence medium
Keller v. Smith Harvestore Prods., 819 P.2d 69, 72 (Colo.1991).
discussed Cited as authority (rule) Student Marketing Group, Inc. v. College Partnership, Inc. (2×)
10th Cir. · 2007 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 74 (Colo.1991).
discussed Cited as authority (rule) Student Marketing v. College Partnership (2×)
10th Cir. · 2007 · confidence medium
Sm ith H arvestore Prods., Inc., 819 P.2d 69, 74 (Colo. 1991).
cited Cited as authority (rule) Alpine Bank v. Hubbell
D. Colo. · 2007 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 72 (Colo.1991); accord BRW, 99 P.3d at 75 .
discussed Cited as authority (rule) Gulfstream Aerospace Services Corp. v. United States Aviation Underwriters, Inc.
Ga. Ct. App. · 2006 · confidence medium
Smith Harvestore Products, Inc., 819 P2d 69, 72 (II) (1) (Colo. 1991) (en banc) (holding that “a contracting party’s negligent misrepresentation of material facts prior to the execution of [the] agreement may provide the basis for an independent tort claim”) (emphasis supplied), with BRW, Inc., 99 P3d at 75 (holding that negligent misrepresentation claim was barred under economic loss doctrine when the duty to report was contained in the parties’ contract); Scott Co. of California v. MK-Ferguson Co., 832 P2d 1000, 1005 (Colo. Ct. App. 1992) (same).
cited Cited as authority (rule) Chemical Separation Technology, Inc. v. United States
Fed. Cl. · 2006 · confidence medium
Smith Harvestore Prods., 819 P.2d 69, 72 (Colo.1991). .
discussed Cited as authority (rule) Abry Partners V, L.P. v. F & W Acquisition LLC
Del. Ch. · 2006 · confidence medium
Smith Harvestore Products, 819 P.2d 69, 73 (Colo.1991) (stating that the "mere presence of a general integration clause in an agreement does not bar a claim for negligent or fraudulent misrepresentation”); Formento v. Encanto Business Park, 154 Ariz. 495 , 744 P.2d 22, 24 (1987) (holding that a clause stating that a buyer was not relying on any statement by the seller "in connection with the Subject Property, its zoning [or] its fitness for any particular use” did not bar reasonable reliance on a representation made by the seller concerning zoning). 69 .
discussed Cited as authority (rule) Colorado Visionary Academy v. Medtronic, Inc.
10th Cir. · 2005 · confidence medium
In answering “yes,” the Colorado court spoke in broad terms: “It is thus clear that a contracting party’s negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim.... ” 819 P.2d at 72 (emphasis added).
discussed Cited as authority (rule) Kaufman v. Guest Capital, L.L.C.
S.D.N.Y. · 2005 · confidence medium
Smith Harve-store Products, Inc., 819 P.2d 69, 73 (Colo.1991) (emphasis added); see also King v. Horizon Corp., 701 F.2d 1313 (10th Cir.1983) (disclaimer clause that did not "specifically address the type of misrepresentation” made *269 did not bar fraud claims for prior oral misrepresentations of defendant’s agent).
discussed Cited as authority (rule) BRW, Inc. v. Dufficy & Sons, Inc.
Colo. · 2004 · confidence medium
In Keller, we held that "a contracting party's negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim." 819 P.2d at 72 (emphasis added).
discussed Cited as authority (rule) Presnell Construction Managers, Inc. v. EH Construction, LLC (2×)
Ky. · 2004 · confidence medium
Smith Harvestore Prods., Inc., 819 P.2d 69, 73 (Colo.1991) as a case where negligent misrepresentation was a tort claim based "not on principles of contractual obligation but on principles of duty and reasonable conduct." Town of Alma, 10 P.3d at 1263 .
Alfred A. KELLER and Martha M. Keller, Plaintiffs-Appellees,
v.
A.O. SMITH HARVESTORE PRODUCTS, INC., a Delaware Corporation, Defendant-Appellant
Wood, Ris & Hames, P.C., E. Gregory Martin, Denver, Wilfred R. Mann, Boulder, for plaintiffs-appellees., The Law Firm of Michael S. Porter, Michael S. Porter, Denver, Francis A. Bene-detti, Wray, Katten Muchin & Zavis, Donald E. Egan, Lee Ann Watson, Andrew M. Hale, Chicago, Ill., for defendant-appellant.
Kirshbaum, Rovira.
Cited by 259 opinions  |  Published

Lead Opinion

Justice KIRSHBAUM

delivered the Opinion of the Court.

Pursuant to C.A.R. 21.1, this court has agreed to answer the following questions certified to it by the United States Court of Appeals for the Tenth Circuit:

1. Whether a cause of action for negligent misrepresentation lies against the manufacturer of a product for representations made during the course of the sale of that product despite the execution of a fully integrated sales agreement.
2. If so, whether the existence of a clause in the sales agreement specifically disclaiming reliance on representations made to the buyer prior to the execution of the sales agreement legally precludes a finding that the buyer in fact relied on such representations.[1]

These questions have been certified in connection with an appellate proceeding involving, inter alia, review of a judgment entered by the United States District Court for the District of Colorado on behalf of buyers of a product and against the manufacturer of the product on a claim of negligent misrepresentation. We answer the first question in the affirmative and answer the second question in the negative.

I

The following undisputed facts are pertinent to this certification proceeding. In July 1980, Alfred A. Keller and Martha M. Keller purchased two Harvestore grain storage systems manufactured by A.O. Smith Harvestore Products, Inc. (hereinafter AOSHPI) from an independent Harvestore dealer. Harvestore systems, which include specially constructed silos and unloading equipment, are designed to prevent oxygen from coming into contact[*71] with feed stored in the silos, thus enabling ranchers to store feed indefinitely and cut feed losses. AOSHPI owns the design patent for the Harvestore Silo. Prospective buyers were advised that use of the silo would result in the reduction or elimination of protein supplements in feeding dairy herds. AOSHPI provided its distributors with video tapes, brochures, and extensive literature to promote sales of Harvestore Silos.

Based upon the representations contained in video tapes, brochures and literature prepared by AOSHPI, the Kellers signed purchase orders with an AOSHPI distributor in July 1980 for two Harvestore systems. The agreements contained the following pertinent provisions:

This order form is the entire and only agreement between the Seller and Buyer; and no oral statements or agreements not confirmed herein, or by a subsequent written agreement, shall be binding on either the Seller or Buyer.
[[Image here]]
Buyer understands the conditions of use of the products and is not relying on the skill or judgment of the Manufacturer or Seller in selecting them because Buyer acknowledges that farming and livestock feeding results are very much the product of individual effort, combined with various climatic, soil, water, growing and feeding conditions which are beyond the control of the Manufacturer and Seller. Buyer recognizes that any advertisements, brochures, and other written statements which he may have read ... are not guarantees and he has not relied upon them as such_ Buyer understands that the sole warranty, express or implied, which is provided by [AOSHPI] ... is as follows_
[[Image here]]
I [BUYER] HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS PURCHASE ORDER INCLUDING THE WARRANTIES, DISCLAIMERS AND TERMS AND CONDITIONS HEREIN GIVEN TO ME, EITHER BY THE MANUFACTURER OR THE SELLER. I RELY ON NO OTHER PROMISES OR CONDITIONS AND REGARD THAT AS REASONABLE BECAUSE THESE ARE FULLY ACCEPTABLE TO ME.

The Kellers also executed leases obligating them to pay $1,220.87 per month for ninety-six months for one system and $890.49 per month for eighty-four months for the second system.

After the Harvestore systems were installed and the Kellers began to use them, the milk production of their herd dropped; a large proportion of the herd developed sores, watery eyes, snotty noses, and rough hair coats; and some of the herd died. In addition, witnesses testified at trial that the silos failed to produce the quality of ensilage that had been promised, that at the time they executed the purchase orders the Kellers had no reasonable basis to determine whether the representations made by AOSHPI through its distributor were true, and that the only persons who had knowledge of how the Harvestore systems would operate were employees and distributors of AOSHPI.

The Kellers ultimately initiated a civil action against AOSHPI and the seller in the District Court for Morgan County, Colorado. The ease was subsequently removed to the United States District Court for the District of Colorado. See 28 U.S.C. § 1441 (1988); 28 U.S.C. § 1332 (1988). Among the claims asserted by the Kellers against AOSHPI was a claim of negligent misrepresentation based on section 552(1) of the Restatement (Second) of Torts (1965) (hereinafter section 552(1)).[2]

[*72] AOSHPI subsequently filed a motion to dismiss the Kellers’ negligent misrepresentation claim on the ground that such claim was barred by the terms of the purchase agreements.[3] The federal trial court denied the motion.[4] At the conclusion of the trial, the jury returned a verdict in favor of the Kellers and against AOSHPI on the Kellers’ negligent misrepresentation claim. AOSHPI appealed the judgment entered on that verdict to the Tenth Circuit Court of Appeals.

II

1. Whether a cause of action for negligent misrepresentation lies against the manufacturer of a product for representations made during the course of the sale of that product despite the execution of a fully integrated sales agreement.

It is well established that in some circumstances a claim of negligent misrepresentation based on principles of tort law, independent of any principle of contract law, may be available to a party to a contract. See, e.g., Rosales v. AT & T Info. Sys., Inc., 702 F.Supp. 1489 (D.Colo.1988); Wagner v. Cutler, 232 Mont. 332, 757 P.2d 779 (1988); Raritan River Steel v. Cherry, Bekaert & Holland, 322 N.C. 200, 367 S.E.2d 609 (1988); First Interstate Bank of Gallup v. Foutz, 107 N.M. 749, 764 P.2d 1307 (1988); Hoffer v. State, 110 Wash.2d 415, 755 P.2d 781 (1988). In addition, as we have observed,[5] section 552(1) contains a definition of negligent misrepresentation. It is thus clear that a contracting party’s negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for an independent tort claim asserted by a party detrimentally relying on such negligent misrepresentations.

That principle is fully compatible with previous decisions of this court and of our Court of Appeals. See Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo.1983); Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70 (1969); Lembke Plumbing & Heating v. Hayutin, 148 Colo. 334, 366 P.2d 673 (1961). See also Wolther v. Schaarschmidt, 738 P.2d 25 (Colo.App.1986); Robinson v. Poudre Valley Fed. Credit Union, 654 P.2d 861 (Colo. App.1982); First Nat’l Bank in Lamar v. Collins, 44 Colo.App. 228, 616 P.2d 154 (1980); Birkenmayer & Co. v. Homestead Minerals, 32 Colo.App. 258, 510 P.2d 449 (1973). Under the particular circumstances disclosed by the record, we conclude that the definition of negligent misrepresentation contained in section 552(1) is persuasive and controls the resolution of the legal issues presented in this case. We also conclude that the Kellers’ complaint alleged sufficient facts to establish a claim of negligent misrepresentation against AOSHPI.

AOSHPI argues that, assuming the availability of a negligent misrepresentation claim in the circumstances of this case, the Kellers’ execution of a fully integrated sales agreement precludes their assertion of such a claim. We disagree.

Integration clauses generally permit contracting parties to limit future contractual disputes to issues relating to the reciprocal obligations expressly set forth in the executed document. KN Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769 (Colo.1985). See Moore v. Georgeson, 679 P.2d 1099 (Colo.App.1983). Thus the terms of a contract intended to represent a final and complete integration of the parties’ agreement are enforceable and parol evidence offered to establish the existence of prior or contemporaneous agreements is inadmissible to vary the terms of such con[*73] tract. Sentinel Acceptance Corp. v. Colgate, 162 Colo. 64, 66, 424 P.2d 380, 382 (1967). However, as we have noted, claims of negligent misrepresentation are based not on principles of contractual obligation but on principles of duty and reasonable conduct. Cosmopolitan Homes, Inc., 663 P.2d at 1043. The parol evidence rule does not bar the admission of evidence to establish tort claims not specifically prohibited by the terms of an agreement. Agristor Leasing v. A. O. Smith Harvestore Prods., Inc., 869 F.2d 264 (6th Cir.1989) (general release of claims clause ineffective to bar claims of fraud and misrepresentation in. the inducement). See Formento v. Encanto Bus. Park, 154 Ariz. 495, 744 P.2d 22 (App.1987). We recognized this distinction in Bill Dreiling Motor Co., wherein we concluded that the parol evidence rule applicable to contract disputes had no force in a tort action alleging fraudulent misrepresentation in the inducement to execute an agreement. See also Lembke Plumbing & Heating, 148 Colo. 334, 366 P.2d 673.

Many other courts have also concluded that the mere presence of a general integration clause in an agreement does not bar a claim for negligent or fraudulent misrepresentation. Agristor Leasing v. Saylor, 803 F.2d 1401 (6th Cir.1986); Moffatt Enters., Inc. v. Borden, Inc., 807 F.2d 1169 (3d Cir.1986) (applying Pennsylvania law); Formento, 154 Ariz. 495, 744 P.2d 22; Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 439 A.2d 534 (1982); Gilliland v. Elmwood Property, 301 S.C. 295, 391 S.E.2d 577 (1990). See also Restatement § 552C comment b (code and contract defenses are inapplicable in tort action); A. Corbin, Contracts § 580 (1989 Supp.); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 110 (5th ed. 1984). We conclude that a general integration clause does not effect a waiver of a claim of negligent misrepresentation not specifically prohibited by the terms of the agreement. The general language of the integration provisions of the purchase agreements here at issue does not specifically preclude negligent misrepresentation claims.

The policy of encouraging honesty and candor in contract negotiations, which policy is reflected in the recognition of an implied covenant of good faith and fair dealing, supports this result. The implied covenant of good faith and fair dealing would virtually be eliminated if a contracting party could escape liability for negligent conduct simply by inserting a general integration clause into the agreement. Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 337 n. 7, 439 A.2d 534, 539-40 n. 7 (1982). As the court in Formento stated, “a seller should not be allowed to hide behind an integration clause to avoid the consequences of a misrepresentation, whether fraudulent or negligent.” Formento, 154 Ariz. at 499, 744 P.2d at 26.

AOSHPI also asserts that the Kellers may not recover on their negligent misrepresentation claim because under section 552(1) they assumed the burden of establishing that AOSHPI was in the business of supplying information for the guidance of others in their business transactions with third parties and they failed to satisfy that burden of proof at trial. We do not accept AOSHPI’s invitation to explore in the abstract this portion of section 552(1). The first certified question requests a determination of the effect of a contractual integration clause on the Kellers’ negligent misrepresentation claim, not a determination of whether the Kellers established the elements of such claim. Furthermore, we are in no position in this certification proceeding to evaluate evidence contained in the record of the United States District Court trial proceedings.

We also reject AOSHPI’s argument that claims of negligent misrepresentation should not be available in suits against manufacturers as opposed to suits against service providers or others in the business of providing information. There is no basis in principle to create a special shield encouraging manufacturers to make negligent misrepresentations of material fact in promoting purchases of their products.

For the foregoing reasons, we answer the first certified question in the affirmative.

[*74] III

2. If so, whether the existence of a clause in the sales agreement specifically disclaiming reliance on representations made to the buyer prior to the execution of the sales agreement legally precludes a finding that the buyer in fact relied on such representations.

The contract in question contains the following provisions:

Buyer recognizes that any advertisements, brochures, and other written statements which he may have read ... as well as any oral statement which may have been made to him, concerning the potential of the Harvestore ... are not guarantees and he has not relied upon them as such.
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[Buyer has] read and understood the terms and conditions of this purchase order including the warranties, disclaimers and terms and conditions herein given to me, either by the manufacturer or the seller. [Buyer relies] on no other promises or conditions and regards that as reasonable because these are fully acceptable to [Buyer].

AOSHPI contends that these provisions constitute a waiver by the Kellers of any claim that requires proof of reliance on statements made by AOSHPI prior to the formation of the purchase agreements. AOSHPI relies on decisions holding that particular disclaimers of reliance clauses constituted waivers of negligence claims against manufacturers or sellers in certain circumstances. See, e.g., One-O-One Enters., Inc. v. Caruso, 848 F.2d 1288 (D.C.Cir.1988); Condios, Inc. v. Driver, 145 Ga.App. 537, 244 S.E.2d 85 (1978); Rio Grande Jewelers Supply, Inc. v. Data Gen. Corp., 101 N.M. 798, 689 P.2d 1269 (1984); Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 157 N.E.2d 597, 184 N.Y.S.2d 599 (1959).

We disagree with AOSHPI’s argument in the particular circumstances of this case. A contract provision purporting to prohibit a party to the contract from asserting a claim of negligent misrepresentation must be couched in clear and specific language. See Agristor Leasing v. A.O. Smith Harvestore Prods., Inc., 869 F.2d 264 (6th Cir.1989); Agristor Leasing v. Saylor, 803 F.2d 1401 (6th Cir.1986); Moffatt Enters., Inc. v. Borden, Inc., 807 F.2d 1169 (3d Cir.1986); Formento v. Encanto Bus. Park, 154 Ariz. 495, 744 P.2d 22 (Ariz. Ct.App.1987); Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 439 A.2d 534 (1982). The non-reliance provisions in this case simply state that the Kellers recognize that certain oral and written statements were not “guarantees” and that the Kellers did not rely upon those statements “as such.” The language of those provisions does not clearly and specifically disclaim reliance by the Kellers on all representations made by AOSHPI prior to the execution of the contract.

For the foregoing reasons, we answer the second certified question in the negative.

ROVIRA, C.J., dissents.
1

A third question originally certified for this court's response has been withdrawn.

2

That section contains the following definition of negligent misrepresentation:

TOPIC 3. NEGLIGENT MISREPRESENTATION § 552. Information Negligently Supplied for the Guidance of Others (1) 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 § 552(1).

3

It is apparently not disputed that AOSHPI, although not a party to the purchase agreements, is entitled to rely upon the provisions of those agreements in defense of the Kellers' claims.

4

Prior to removal, AOSHPI unsuccessfully requested the state trial court to enter summary judgment against the Kellers on their negligent misrepresentation claim on the ground that such claim was barred by the terms of the purchase agreements.

5

Note 2, supra.

Dissent

Chief Justice ROVIRA

dissenting:

This case arises out of a dispute regarding agricultural feed and storage structures manufactured by A.O. Smith Harve-store Products, Inc. (Harvestore) and purchased and used by the respondents Alfred and Martha Keller (Kellers) on their dairy farm. The written sales agreement contained certain express limited warranties, disclaimers of warranties, and limitations of remedies by and for the benefit of the Kellers, Harvestore, and the seller. It also contained an express acknowledgement by the Kellers that the purchases were not made in reliance upon any advertisements, brochures, or other written statements which they may have read, and that no oral statements or agreements not contained within the agreement would be binding upon any party.

Prior to trial, all of the Kellers’ claims, except claims for fraudulent and negligent misrepresentation, were dismissed. The case proceeded to trial against Harvestore on those claims and the jury found for the Kellers on the negligent misrepresentation claim, and for Harvestore on the fraudu[*75] lent misrepresentation claim. After an appeal by Harvestore to the United States Court of Appeals for the Tenth Circuit, that court certified the two questions set out in the majority opinion. Maj. op. at 70.

The majority opinion holds that a cause of action for negligent misrepresentation based upon section 522(1) of the Restatement (Second) of Torts (1965), lies against the manufacturer of a product for representations made during the course of the sale of that product, despite the execution of a fully integrated sales agreement. This conclusion is based on the rationale that: (1) a claim of negligent misrepresentation independent of any principle of contract law may be available to a party to that contract; (2) section 552(1) defines negligent misrepresentation; (3) thus, a party’s negligent misrepresentation of material facts prior to the signing of an agreement may provide the basis for an independent tort claim by the other party. Maj. op. at 72. Because I believe that the majority confuses tort and contract principles and negates the provisions of a contract freely entered into, I dissent.

The majority states that a claim for relief based on section 552 of the Restatement of Torts is available in Colorado. I assume solely for the purpose of this case that such a claim exists, and, as does the first certified question, that manufacturers of products are subject to section 552. I do not express any opinion on whether it is necessary to establish that Harvestore was in the business of supplying information for the guidance of others in their business transactions with third parties before a claim for negligent misrepresentation under section 552 may be maintained.

Allowing a party to sue for representations made prior to the execution of a contract, although the contract specifically states that such representations are not to be relied upon and are not binding, is antithetical to the principles of freedom of contract. The official comment to section 4-1-102 of the Uniform Commercial Code (Code) which governs commercial transactions in Colorado provides that freedom to contract is a principle of the Code. § 4-1-102, comment 2, 2 C.R.S. (1973). Contracts between competent parties, voluntarily and fairly made, should be enforceable according to the terms to which they freely commit themselves. Rio Grande Jewelers v. Data General Corp., 101 N.M. 798, 800, 689 P.2d 1269, 1271 (1984). Parties to a contract should be able to allocate risk, and determine their rights and liabilities under a contract, such as disclaiming liability for negligent representations made prior to the sale. See Tokio Marine & Fire Ins. Co. v. McDonnell Douglas Corp., 617 F.2d 936 (2d Cir.1980); Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So.2d 496 (Ala.1984); Burroughs Corp. v. Datacap, 124 A.D.2d 622, 507 N.Y.S.2d 882 (1986); Stanley v. Miro, 540 A.2d 1123 (Me.1988); Meeting Makers, Inc. v. American Airlines, 513 So.2d 700 (Fla.App.1987).

The majority opinion acknowledges the principle that generally, contracting parties can use integration clauses to limit future contractual disputes relating to the reciprocal obligations expressly set forth in the executed document. Maj. op. at 72. Yet, it holds that when a party claims that another party has negligently misrepresented information essential to an informed decision, the provisions of the contract are of no consequence because the claim is based “on principles of duty and reasonable conduct.” Maj. op. at 73. Tort law should not be a means of circumventing the principles of contract law. “The effect of confusing the concept of contractual duties, which are voluntarily bargained for, with the concept of tort duties, which are largely imposed by law, would be to nullify a substantial part of what the parties expressly bargained for — limited liability.” Isler v. Texas Oil & Gas Corp., 749 F.2d 22, 23 (10th Cir.1984). “Tort law proceeds from a long historical evolution of externally imposed duties and liabilities. Contract law proceeds from an even longer historical evolution of bargained-for duties and liabilities.” Id. “Important to the vitality of contract is the capacity voluntarily to define the consequences of breach of a duty before assuming the duty.” Id. The idea that tort law should not be a means of circumventing the'[*76] principles of contract law was expressed in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). In that case, the injury was to the product itself, and the plaintiffs sued under a tort theory. In deciding that contract law and not tort law should control such an action, the Court relied on the principle that the parties should be able to set the terms of their agreements and that in exchange for a restriction on liability, the purchaser pays less for the product. Id. at 872-73, 106 S.Ct. at 2302-03.

I disagree that the contract must specifically disclaim negligent misrepresentation claims in order for the disclaimer to be effective, as the majority opinion holds. Maj. op. at 73 (parol evidence rule not applicable where agreement does not bar the assertion of negligent misrepresentation tort claims). Where there is no ambiguity, the agreement will be enforced according to the express provisions of the contract, giving words their plain and generally accepted meaning. See, e.g., Public Serv. Co. v. City & County of Denver, 153 Colo. 396, 403, 387 P.2d 33, 36 (1963); U.S. Fidelity & Guar. Co. v. First Nat'l Bank of Fort Morgan, 147 Colo. 446, 450, 364 P.2d 202, 205 (1961). The contract expressly provides that “no oral statements or agreements not confirmed herein, or by a subsequent written agreement, shall be binding on either the Seller or Buyer,” and that “Buyer recognizes that any advertisements, brochures, and other written statements which he may have read ... as well as any oral statement which may have been made to him, concerning the potential of the Harvestore ... are not guarantees and he has not relied upon them as such.” This language makes it clear that representations made prior to signing of the contract were not to be relied upon and would not be binding upon either party. This disclaimer was valid and no specific reference to negligent misrepresentation claims is necessary in order to preclude the bringing of such claims.

Finally, section 4-1-103, 2 C.R.S. (1973), of the Colorado Uniform Commercial Code provides in part: “Unless displaced by the particular provisions of this title, the principles of law and equity, including the law merchant and the law relative to ... misrepresentation ... or other validating or invalidating cause shall supplement its provisions.” Thus, negligent misrepresentation will not lie if in conflict with the particular provisions of the Code.

A claim of negligent misrepresentation under the Restatement displaces the particular provision of section 4-2-202, 2 C.R.S. (1973). This section provides that terms which are set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms may not be contradicted by evidence of any pri- or agreement or of a contemporaneous oral agreement. “It is well-settled that the par-ol evidence rule excludes extrinsic evidence which varies or contradicts the express terms of a written agreement, and that the rule applies to sales transactions as well as to other types of contracts.” Sentinel Acceptance Corp. v. Colgate, 162 Colo. 64, 66, 424 P.2d 380, 382 (1967). Thus, representations made prior to the contract are not to be admitted into evidence where the contract expressly provides, as it did here, that the contract is fully integrated and prior oral or written agreements not within the contract are not to be relied upon and are not binding.

The majority is correct in asserting that the parol evidence rule is inapplicable where the allegation is fraudulent misrepresentation that induces the individual to enter into the agreement. Maj. op. at 73. See Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70 (1969). However, hére the jury found that there was no fraudulent misrepresentation. The majority cites several Colorado eases where the court refused to apply the parol evidence rule, but none of these cases involved negligent misrepresentations made about the product.

In my opinion, the fully integrated sales agreement precludes the bringing of an action for negligent misrepresentation. Public policy encourages freedom between competent parties to enter into contracts and establish the terms and conditions of[*77] the relationship. Unless contrary to established public policy or statutory law, the terms of the contract should be enforced as written, not as a court would wish them to be. I would answer the first question in the negative, and therefore find no need to address the second.

Accordingly, I respectfully dissent.