In this diversity action arising from negotiations for the sale of a building, the district court granted summary judgment for the defendant Medtronic, Inc. (Med-tronic) on the negligent misrepresentation claim of plaintiff Colorado Visionary Aead-emy (Colorado Visionary). Order and Memorandum of Decision (November 9, 2001) at 30. Judgment for Medtronic was granted on Colorado Visionary’s promissory estoppel claim after a bench trial. Ill Aplt.App. 993-94. Final judgment was entered and the appeal therefrom is timely. 1
We first hold that the district court erred in concluding that Colorado Visionary’s negligent misrepresentation claim could not be maintained under the circumstances of the case, and we reverse that ruling. Because Colorado Visionary was entitled to a jury trial on that claim, and because any explicit findings of the jury and any necessary inferences from a general verdict would have been binding on the district court in the bench trial of the promissory estoppel claim, we vacate the judgment for Medtronic on the promissory estoppel claim with directions to reconsider that claim after the jury trial of the negligent misrepresentation claim. We also vacate the district judge’s pretrial ruling which precluded plaintiff from presenting evidence of lost profits on its promissory estoppel claim. The remedies available, if that claim succeeds, must be determined in light of the specific facts and circumstances as they are finally determined.
I
THE FACTUAL BACKGROUND
Only a very general overview of the background of this litigation is necessary for the context of our analysis of the legal issues involved in this appeal. Because of *869 our holdings in Part II and Part III, infra, the relevant facts are stated in the light most favorable to Colorado Visionary; we need not give deference to the findings of the district court.
Plaintiff Colorado Visionary Academy is a charter school. In the spring and summer of 1999, it needed to find a new site for the upcoming school year. Although plaintiff had explored other possibilities, it was very interested in a facility owned and operated by Medtronic. ■ Defendant Med-tronic manufactures and sells health equipment. Medtronic had a large building in Parker, Colorado, that it used for research and manufacturing. Medtronic was interested in selling the facility to Colorado Visionary and leasing back a portion of the space for its continued operations.
A proposal along those lines was made. Negotiations were quite serious and reached the point where apparently at least some of those involved believed that a final deal would be struck. Colorado Visionary had begun moving some administrators into the building and was preparing to do some renovation. In the end, however, Medtronic’s management decided against the sale, apparently over liability concerns about having schoolchildren in the same building where it was conducting its operations. This decision was communicated to Colorado Visionary on August 4, 1999.
In June, 1999, however, Colorado Visionary had allegedly been given assurances that the deal would close. Among the statements allegedly made by representatives of Medtronic was that the deal “had been approved at the highest corporate level,” that the deal was “a friendly transaction,” and that any problems would be worked out.
In reliance on these assurances, Colorado Visionary declined an opportunity to lease a different site and began preparations for moving into Medtronic’s building. With Medtronic’s consent, parents were invited to a meeting there. Medtronic began moving’ out of the area that was to be used by the school. In early August 1999, contractors began physical work at the facility, including some demolition. But on August 4, with school to begin in September, word came that Medtronic would not go through with the deal. This announcement came from Medtronic’s general counsel. About one hundred students who had been expected to enroll did not, and this of course substantially-reduced Colorado Visionary’s revenues. After trying for a year to continue on a temporary campus, the school lost its charter-from the local school district.
This suit by Colorado Visionary against Medtronic and Tobin Real Estate Company was commenced on August 20, 1999. On June 12, 2000, Medtronic moved for summary judgment oh Colorado Visionary’s amended complaint in that action. This amended complaint had been accepted by a magistrate judge on March 30, 2000. In its motion for summary judgment, Medtronic argued that Colorado Visionary’s promissory estoppel claim should be dismissed because Colorado Visionary did not rely on Medtronic’s representations and because the proposed transactions between ' Colorado Visionary and Medtronic were illegal and impossible to perform. See Order and Memorandum of Decision at 13. Medtronic contended that Colorado Visionary’s negligent misrepresentation claim should be dismissed because it was premised on a promise to act in the future; there was no third party action to support the claim; negligent misrepresentation cannot properly be stated as a claim between parties to a contract; and the economic loss rule barred Colorado Visionary’s negligent representation claim.
*870 Medtronic’s motion for summary judgment was granted in part and denied in part. Summary judgment was granted with respect to Colorado Visionary’s negligent misrepresentation claim and denied with respect to Colorado Visionary’s promissory estoppel claim. Order and Memorandum of Decision at 30.
II
THE NEGLIGENT MISREPRESENTATION CLAIM
We will first determine whether the district court was correct in deciding that under Colorado law, Colorado Visionary’s negligent misrepresentation claim against Medtronic could not be maintained under the circumstances of this case. This is an issue of law that we review
de novo. See Lampkin v. Little,
Colorado has adopted the Restatement (Second) of Torts § 552 definition of a claim for negligent misrepresentation. That section provides:
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 (Second) of Torts § 552 (1977).
The district judge characterized the heart of Medtronic’s argument for summary judgment on the negligent misrepresentation claim as based on the contention that “the economic loss rule prevents recovery because Colorado Visionary has not shown an independent duty of care between two parties negotiating a contract at arm’s length.” Order and Memorandum of Decision (Nov. 13, 2001) at 23. We note this succinct definition of the economic loss rule: “As a general rule, no cause of action lies in tort when purely economic damage is caused by negligent breach of a contractual duty.”
Jardel Enterprises, Inc. v. Triconsultants, Inc.,
The district judge clearly recognized that under Colorado law, the economic loss rule has no application to a valid claim for negligent misrepresentation, stating: “Where a duty independent of contractual obligation exists however, the economic loss rule is inapplicable because the claim is not within the scope of the rule.” Order and Memorandum of Decision at 24. The issue is whether or not Colorado Visionary’s negligent misrepresentation claim is viable, and that in turn depends on whether Medtronic was under a duty to avoid negligently misrepresenting facts on which Colorado Visionary might reasonably be expected to rely.
The district judge held that the negligent misrepresentation theory does not apply to negotiations for a contract, absent some special circumstances. After reviewing the Colorado decisions, the judge concluded: “Colorado caselaw indicates that
*871
section 552 has not been used to establish an independent duty of care between contracting parties without affirmative action or expertise on the part of the party supplying information.” Memorandum and Order of Decision at 25. The judge later observed that “[t]o the extent that Colorado law has arguably not restricted liability for negligent misrepresentation to professional suppliers of information, a situation beyond adversarial bargaining existed — i.e. the party making [the] representation had a special expertise about the information conveyed.”
Id.
at 27 (citing
First Nat. Bank v. Collins,
Because we find no controlling Colorado authority on the issue as framed by the district court, our task is to predict how the Colorado Supreme Court would rule if that court were faced with this issue.
See FDIC v. Schuchmann,
We conclude that the weight of the precedents favors the position advanced by Colorado Visionary as to the scope of negligent representation liability. At the outset we note tension between the Restatement’s definition of the tort, which has been adopted in Colorado, and the rule which the district court distilled from the Colorado cases. Section 552 on its face applies when a person supplies false information in a transaction “in which he has a pecuniary interest....” This contradicts the district court’s conclusion that the tort applies only when the supplier of information “was allegedly acting to further the recipient’s economic interests, not the economic interests of the supplier.” Order and Memorandum of Decision at 27.
In
Keller v. A.O. Smith Harvestore Products, Inc.,
Moreover, it is instructive to examine the cases cited by the Colorado Supreme Court in
Keller.
The state court in that case began its analysis by citing the definition of the tort of negligent misrepresentation from the Restatement (as quoted
supra)
and noting a number of cases from other jurisdictions recognizing the tort.
In his action against his former employer, the plaintiff had pleaded a claim for negligent misrepresentation (along with several other theories of relief). The defendant employer moved to dismiss that count of the complaint under Fed.R.Civ.P. 12(b)(6), contending that the tort of negligent misrepresentation could not be pursued under the circumstances of that case. Defendant in that case argued, more specifically, that the tort of negligent misrepresentation is limited “to persons and entities engaged in the business of supplying information which their customers might rely upon in taking some additional action.”
In
Keller,
the Colorado Supreme Court also cited with apparent approval
Wagner v. Cutler,
Although other cases cited in Keller do involve defendants who provided information as part of their profession, 4 the examples just discussed indicate rather strongly that the Colorado Supreme Court did not consider this to be an element of the negligent misrepresentation claim. Moreover, another case cited in Keller reinforces this inference. Following its initial discussion of negligent misrepresentation, the portion of the opinion in which the above discussed cases were cited, the Colorado court addressed the defendant’s contention that the claim in that case was in any event precluded by an integration clause in the contract. The details of this argument are not relevant here.
What is relevant, though, is that in its analysis rejecting the argument the Colorado court cited specifically a footnote in a Maryland case that quite explicitly rejects the contention that the tort of negligent misrepresentation is inapplicable in a case involving adversarial, arm’s length negotiations. In that footnote, the Maryland court noted that the defendants there had argued that the tort of negligent misrepresentation could never be “applied to statements made in connection with consummation of an arm’s length transaction” and rejected the argument categorically.
Martens Chevrolet, Inc. v. Seney,
In this context, an argument could be made that the Colorado court was citing the Maryland court’s footnote only for the second point, not the first, but we do not think that argument would be persuasive. The undeniable fact is that the Colorado court cited specifically a footnote that explicitly rejects the argument made by Medtronic in this case and accepted by the district judge. In light of the paucity of contrary expressions by the Colorado courts, 5 it was error for the district court to ignore this important indication of the views of the Colorado Supreme Court.
And there is further support for the same view to be found in cases from the Colorado courts. The Supreme Court of Colorado addressed issues concerning the damages recoverable in a negligent misrepresentation case and the evidence required to establish damages in
Western Cities Broadcasting, Inc. v. Schueller,
The district judge relied upon
First National Bank v. Collins,
Regarding those allegations as true, the Colorado Court of Appeals determined that Collins sufficiently stated a claim for relief to be granted on the tort liability for negligent misrepresentation,
The district judge also said that his holding was in accord with our holding in
United Intern. Holdings, Inc. v. Wharf (Holdings) Ltd.,
In sum, our review of Colorado law leads us to the conclusion that the tort of negligent misrepresentation can arise from ordinary, arm’s length bargaining that was expected to lead to a contractual relationship. We therefore reverse the holding of the district court and order that the negligent misrepresentation claim be reinstated.
Ill
THE PROMISSORY ESTOPPEL CLAIM
After granting judgment as a matter of law on the plaintiffs negligent mis *875 representation claim, the trial judge determined that plaintiffs remaining claim, based on the theory of promissory estop-pel, would be tried to the court. On appeal, Colorado Visionary concedes that this claim is an equitable one on which it would not be entitled to a jury trial if it had been the only claim involved in the case. 6 Colorado Visionary contends, however, that it was entitled to trial by jury on the negligent misrepresentation claim, and we have decided that, indeed, the district court erred in deciding that claim as a matter of law. It follows, Colorado Visionary argues, that the decision on the promissory estoppel claim should be reversed or vacated because, but for the error in eliminating the negligent misrepresentation claim before trial, the outcome of the trial of the equitable claim of promissory estoppel might have been different. The argument is that Colorado Visionary would have been entitled to the benefit of any jury findings in its favor on the legal claim of negligent misrepresentation, findings which might have precluded the district judge from making certain of the findings that he eventually did make on the equitable claim.
We conclude that Colorado Visionary is correct. Under well settled principles, when a plaintiff brings both legal and equitable claims in the same action, the Seventh Amendment right to jury trial on the legal claims must be preserved by trying those claims first (or at least simultaneously with the equitable claims), and the jury’s findings on any common questions of fact must be applied when the court decides the equitable claims.
See Lytle v. Household Mfg., Inc.,
We discussed the applicable principles at some length in
Ag Services of America, Inc. v. Nielsen,
We note that defendant contends that there are no common questions of fact on the legal claim of negligent misrepresentation and the allegedly equitable claim of promissory estoppel. On the other hand, plaintiff points out that defendant made assertions in the court below that are quite at odds with this contention. In any event, this will be for the district court to determine on remand.
Medtronic also argues that the district court’s ruling on this promissory estoppel claim should not be disturbed because the district court assumed facts in favor of Colorado Visionary before ruling as a matter of law that plaintiff was not entitled to recover even if the facts were as assumed. We have given careful consideration to this argument because it seems, at least at first blush, to be forceful. Nevertheless, out of an abundance of caution we conclude that the decision below should be vacated nevertheless.
The trial judge made very detailed and careful findings after the close of the evi *876 dence. Moreover, as Medtronic points out, after announcing these findings, which on the whole were unfavorable to Colorado Visionary, the judge did ground his ultimate ruling on conclusions he thought would follow even if he had decided critical issues in Colorado Visionary’s favor. The trial judge held that even if certain promissory statements had been made (contrary to his factual findings), the statements were not of a type on which plaintiff could have reasonably relied, given the context of the dealings. Moreover, he also held that this was not a case in which injustice could be avoided only by enforcement of the promises.
We nevertheless conclude that the decision should be vacated so that the judge can view the issue in the light of the evidence as it comes out in the jury trial of the negligent misrepresentation claim. We cannot ascertain the likelihood that the ultimate result may differ. But it is more in keeping with the right to trial by jury to leave open the opportunity to decide this claim in light of the evidence, and especially the decision of the jury, after trial.
IV
DAMAGES RECOVERABLE ON THE PROMISSORY ESTOPPEL CLAIM
The third and last issue raised by plaintiff-appellant Colorado Visionary concerns the damages recoverable under Colorado law on a claim for promissory estoppel. The district court in the instant case ruled before trial that plaintiff was not entitled to recovery of lost profits on the claim. Although the district court ultimately ruled that defendant was not liable to plaintiff at all on this claim, because of our disposition of the previous issues we think it proper for us to decide this issue for the guidance of the district court on remand.
At the beginning of the pretrial conference, the judge said: “I don’t understand how lost profits are in this case at all. I’m not going to hear any evidence of lost profits. That’s not the law.” Ill App. 889. Thus, it seems fairly clear that the judge’s view was that lost profits are not recoverable as a matter of law on a claim for promissory estoppel. But although the judge said that the plaintiffs position was contrary to Colorado law, he cited no authority for that conclusion. The judge did refer to the leading Colorado case on point,
Kiely v. St. Germain,
In Kiely, the court adopted section 139 of the Restatement (Second) of Contracts as the statement of principles governing the remedies available in an action for promissory estoppel when, as in this ease, the defense raises a statute of frauds defense. The principles require a careful balancing of several factors. Section 139 provides:
Enforcement by Virtue of Action in Reliance
(1) A promise which the promisor should reasonably expect to induce action or forbearance ■ on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.
(2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant:
*877 (a) the availability and adequacy of other remedies, particularly cancellation and restitution;
(b) the definite and substantial character of the action or forbearance in relation to the remedy sought;
(c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence;
(d) the reasonableness of the action or forbearance; [and]
(e) the extent to which the action or forbearance was foreseeable by the promisor.
Kiely,
Notably, this statement of principles includes an express command to limit remedies as justice requires. Thus, it is clear that a plaintiff is not necessarily entitled to all remedies that would have been available on a breach of contract claim. But for our purposes it is most significant that the court in Kiely specifically said that the analysis must be done in light of the evidence. Here, the district judge had previously ruled that material issues of fact precluded summary judgment for the defendant on whether the plaintiff had relied on the representations made by representatives of the defendant and whether plaintiffs alleged reliance was reasonable. II Aplt.App. 727-30. Yet, even though those disputed issues are specifically identified as significant circumstances to be considered in determining the appropriate remedy, the trial judge here ruled before any evidence had been presented.
Plaintiff cites a number of cases which, it contends, show that Colorado courts have often awarded “benefit of the bargain” or “expectation” damages, as opposed to mere restitutionary damages, on promissory estoppel claims. In one case, the state’s high court said, “A promise that is binding pursuant to the doctrine of promissory estoppel is a contract, and full-scale enforcement by normal remedies is appropriate.”
Board of County Commissioners v. DeLozier,
In view of the analysis adopted by the court in Kiely, moreover, we do not think that it is helpful to compare the number of cases awarding one type of remedy with the number of cases awarding another type. The result depends on the particular circumstances of the case, and the error by the district court in this case was that it ruled before the facts were clear. As with the plaintiffs promissory estoppel claim generally, these particular circumstances may be shaped by the jury’s verdict on the legal claim of negligent misrepresentation. Thus, the error in deciding the remedial issue before trial was not cured by the fact that the district judge’s eventual findings eliminated the issue altogether.
We therefore do not reach the issue whether the plaintiff should be allowed to recover for lost profits. If the plaintiff prevails at trial on its negligent misrepresentation claim, it will then be the district court’s task to reconsider its rulings on the promissory estoppel claim, both as to liability and as to damages, to ensure that it has given full deference to the jury’s verdict and its findings, if any, in accord with *878 the principles set out in Ag Services as discussed supra.
V
CONCLUSION
The judgment of the district court in favor of defendant-appellee Medtronic is REVERSED, and the case is REMANDED for further proceedings in accordance with this opinion.
Notes
. Appellant’s briefs list the second defendant, Tobin Real Estate Company d/b/a CRESA Partners-Minneapolis/St. Paul, as an appel-lee, but not one word of the briefs purports to show any error made by the district court in its rulings as to this defendant. No entry of appearance was made on behalf of this defendant, and appellant's silence in response indicates that appellant probably never intended to appeal the judgement as to this defendant. In any event, whatever appellant’s intention may have been, the failure to pursue the appeal as to the second defendant constitutes a waiver of any error in the judgment as to that party.
. Further discussion of the economic loss rule appears in
Town of Alma,
. We discuss Collins further infra.
. Defendants in
Raritan River Steel Co. v. Cherry, Bekaert & Holland,
. Admittedly, some language in
Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver,
. Because the issue as to whether the promissory estoppel claim is an equitable one has not been presented to us, we express no opinion on whether this is correct as a matter of federal law, which governs the right to a jury trial in diversity cases.
Simler v. Conner,