Lloyd v. GM
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Lloyd v. General Motors Corp., No. 10, September Term, 2002. Opinion by Bell, C.J. TORT - PRODUCTS LIABILITY - ECONOMIC DAMAGES Even in the absence of actual personal injury, economic loss, the cost to fix the defect alleged, is recoverable where it is also alleged that such defect has caused, in other cases, serio us bo dily in jury and, th us, const itute s an u nrea sona ble risk o f dea th or serio us in jury. IN THE COURT OF APPEALS OF MARYLAND No. 10 September Term, 2002 ______________________________________ TIMOTHY AND BERNADETTE LLOYD, ET AL v. GEN ERA L MO TOR S CO RPO RAT ION, ET AL ______________________________________ Bell, C.J. *Eldridge Raker *Wilner Cathell Harrell Battaglia, JJ. Opinion by Bell, C.J. Eldridge, J., Concurs Filed: February 8, 2007 *Eldridge and W ilner, JJ., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also p articipated in the decision and adoption of this opinion. The major issue in this case is whether the cost to repair defective seatbacks, which allegedly have a tendency to collapse in rear-impact collisions, causing, in some cases, serious bodily injury or death to drivers and/or passengers in the class vehicles, constitutes a cognizab le injury, in the form of economic loss for claims sounding in tort, contract, and consumer protection. Inconsistent with the conclusion reached b y the Circuit Co urt for M ontgom ery County and the Court of Special Appeals, we shall hold that the petitioners, Tim othy and Be rnadette Lloyd, have sufficiently alleged an injury that is cognizable under each of the petitioners claims. Accord ingly, we shall reverse the judg ment of th e Court of Special A ppeals dismissing the petitioners claims. I. The petitioners are Timothy and Bernade tte Lloyd and seven other Maryland residents, who own class vehicles, automobiles manufactured betw een 1990 and 1999 by the respondents, General M otors Corporation, Ford Motor Company, Daimler Chrysler Corporation and Satur n Corpo ration. The p etitioners brou ght this class action to recover from the respondents the cost of repairing and/or replacing the front seats in each class vehicle. They allege that the seats are unsafe because th ey collapse rear ward in m oderate and severe rear-impact collisions. None of the petitioners or any putative class members allege that he or she has experienced personal injury as a result of the mechanical failure that caused the alleged def ect. Indeed, pe rsons with such exp eriences w ere expres sly excluded f rom this class.1 The Third Amended C omplaint ( TAC ) contains seven counts. Count one alleges negligence in the design and manufacture of the seats. Count two, sounding in strict liabi lity, alleges that the seats were in a defective condition, rendering them inherently dangerous and creating an unreasonable risk of serious injury or death to users when they left the control of the defendants. Count three alleges breach of the implied warranty of merchan tabil ity. Count four all eges ne gligent f ailure to disclose , failure to warn, concealment and misreprese ntation. Count five alleges fraudulent concealment and intentional failure to warn. Count six alleges unfair or deceptive trade practices under the Maryland Consumer Protec tion Ac t (CPA ). Coun t seven alleges c ivil cons piracy. Significant to the case sub judice, the TAC sets forth the following allegations of fact: 27. Each year more than a thousand people die and many thousands more are injured in rear-impact motor vehicle collisions in the U.S. Some of these people are Maryland residents. 29. The Defect h as resulted in significant numbe rs of serious injurie s including paraplegia, quadriplegia and death to occupants of Class Vehicles struck in rear-impact collisions. 1 The Th ird Ame nded C omplaint d efines T he Class as: all Maryland residents who own a Class vehicle, excluding i) all persons or entities who have already commenced an individual civil action based on the product defects alleged in this suit, ii) all persons who have suffered personal injury as a result of the rearward collapse of a Seat, iii) the officers, directors agents, controlled persons, servants or employees of Defendants; and iv) members of the immediate families of all persons covere d in iii) ab ove. 2 31. All Seats h ave the D efect. 32. It is highly predictable that a certain percentage of occupants of Class Vehicles will be killed or seriously injured in rear-impa ct motor ve hicle collisions each yea r in the U .S., and that some of those killed or injured will be Class Members. 33. The automobile seat is the single most important life-saving device in an automobile in the event of a crash. 36. The inclusion of properly designed dual recliner mechanisms greatly increases the resistance to rearward collapse of the backrest, and minimizes injury to the occupants. [] 40. The Sea ts are unreas onably unsa fe in mod erate and severe rear-impact collisions beca use they ar e so w eak t hey deform and/or collapse rearward, allowing the occupant to slide or ramp up the seatback and suffer hyper extension of the spine over the top of the Seat, or to be hurled into the r ear seat area. The latter event can result in injuries not only to the occupant who is hurled back, but also to those already seated in the rear of the vehicle, including children in safety seats position ed as re comm ended by the ma nufac turer. Additional hazards caused by Seat collapses include: 1) the loss of vehicle control when the driver is unable to reach pedals or hand controls, and 2) delayed escape from th e vehic le in the e vent of fire. The petitioners filed this suit in the Circuit Court for M ontgomery County. Before the petitioners filed pleadings seeking certification of a class, the respondents moved, pursuant to Maryland Rule 2-3 22 (b), 2 to dismiss the comp laint for failure to state a claim upon which 2 Maryland Rule 2-322 (b), governing Preliminary Motions, provides: (b) Permissive. The following defenses may be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the subject matter, (2) failu re to state a claim upon w hich relief ca n be gran ted, (3) failure to join a party under Rule 2-211, (4) discharge in bankruptcy, and (5) governmental immunity. If not so made, these defenses and objections may be made in the answer, or in any other appropriate manner after answer is filed. 3 relief could be granted. The trial court granted the motion, holding that the economic loss doctrine would not support the cause of action being sought by the plaintiffs in this case, and there is in suffici ent bas is to allow a fraud claim to continu e again st these d efend ants. The petitioners no ted an appeal to the Court of Special Appeals. In an unreported opinion, that court affirmed the dismissal of the action. It reasoned that, for each claim, the petitioners failed to plea d sufficien tly the required alle gation of in jury or actual ha rm to withstand a motion to dismiss. The intermediate app ellate court also held that the petitioners failed to plead the fraud and conspiracy claims sufficiently, characterizing the allegations as vague, confused, and extremely ambiguous and, as well, as supported by insufficient facts. The petitioners filed a petition for Writ of Certior ari, whi ch we granted . Lloyd v. GM, 369 Md. 179, 798 A.2d 551 (2002). The petitioners urge this Court to reverse the judgment of the Court o f Special A ppeals, wh ich, they argue, is erroneou s for failing to conclude that the cost to class members to fix the defective seatbacks, a p roven cau se of seriou s bodily injury or death in rear-collision accidents, constituted a cogniza ble in jury. M ore p artic ularly, the petitioners aver that such required remedial expenditures constitute economic loss, which this Court has permitted to be recovered when the product defect factor creates an unreason able risk of dea th or serious in jury. That econom ic loss, the petition ers submit, is recoverab le under each of the substantive legal counts alleged in the Third Amended Comp laint, including those alleging violation of the Consumer Protection Act, breach of 4 warra nty, fraud , and co nspirac y. The responde nts do not agree. They argue that the Circuit Court and the intermed iate appellate court ruled c orrectly. They sub mit that the pe titioners have not stated a c ognizable injury, which they must do in order to recover under the claim s asserted in the Third Amen ded Co mplaint. Sp ecifically, the respo ndents deny that the petitioners have suffered actual harm to person or property or experienced product malfunction as a result of the product defect, and thus, th ey contend, th e damag es sought b y the petitioners ar e simply speculative. The respondents also argue that the petitioners failed to argue in their Petition for Certiorari tha t the Court o f Special A ppeals erred in dismissing the fraud a nd civil conspiracy claims and , therefore, ha ve waive d the right to raise the issue before this Court. In any event, the respondents assert, in accordance with the holding of the Court of Special Appeals, that the petitioners did not plead the fraud and conspiracy claims with sufficient particularity to state a cognizable claim. II. Upon review o f a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, a court must assume the truth of all well-pleaded facts and allegations in the com plaint, as we ll as all inferences that can reasonably be drawn from them, Morris v. Osmose Wood Preserving, 340 Md. 519 , 531, 667 A.2d 6 24, 630 (1995), and order dismissal only if the allegations and permissible inferences, if true, would not 5 afford relief to t he plain tiff, i.e., the allegations do not state a ca use of action. A.J. Decoster Co. v. Westinghouse, 333 Md. 2 45, 249 , 634 A .2d 133 0, 1332 (1994 ). See also Sharrow v. State Farm Mutual Ins. Co., 306 Md. 754, 768 , 511 A.2d 482, 499 -500 (198 6), in which we stated the rule as follows: [I]n considering the legal sufficiency of [a] complaint to allege a cause of action for tortious interference, we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings. Mere c onclusory charges that are not factual allegations may not be considered. Morris, supra, 340 M d. at 531 , 667 A .2d at 63 1, Faya v. Almaraz, 329 Md. 435, 443, 620 A.2d 327, 331 (1997). M oreover, in determining whether a petitioner has alleged claims upon which relief can be granted, [t]here is. . . a big difference between that which is necessary to prove the [commission of a tort]] and that which is necessary merely to allege [its commission], Sharrow supra, 306 Md. at 770, 511 A.2d at 500, and, when that is the issue, the court s decision does not pass on the merits of the claims; it merely determines the plaintiff s right to bring the actio n. Figueiredo-Torres v. Nickel, 321 Md. 642, 647, 584 A.2d 69, 72 (1991). Furthermore, the court must view all well-pleaded facts and the inferences from those facts in a light most favorable to the pla intiff. Board of Education v. Browning, 333 M d. 281, 2 86, 635 A.2d 3 73, 376 (1994 ). III. Traditiona lly, damages in products liability cases have been categorized as (1) 6 personal injuries, (2) physical harm to tangible things, and (3) in tangible economic loss resulting from the in ferior quality or unfitness of the product to serve adequately the purpose for which it was purchased. A.J. Decoster Co. v. Westinghouse, 333 Md. 245, 249-50, 634 A.2d 1330, 1332 (19 94) (citing W. Pa ge Ke eton et a l., P ROSSER AND K EETON ON THE L AW OF T ORTS § 101 at 707-08 (5th ed. 1984)). The latter of these damages, and the on e with which we are concerne d in the instan t matter, is econo mic loss . U.S. Gypsum Co. v. Mayor and City Council of Baltimo re, 336 Md. 145, 156, 647 A.2d 405, 410 (1994). Such loss occurs when a purchase r suffers los s of value o r use of the product, an d has abso rbed, or w ill absorb, the cost to repair or replace the product, or has lost or will lose profits resulting from the loss of use of the prod uct. Id., citing WILLIAM L. PROSSER, THE LAW OF TORTS §§ 101, at 665 (4th ed. 1971); Com ment, Manufacturer's Liability to Remote Purchasers for "Econo mic Loss" D amages-- Tort or Co ntract?, 114 U. Pa. L. Rev. 539 (196 6). O rdinarily, such d amag es are n ot allow ed in tor t actions . Id. The petitioners in the matter sub judice aver that they were damaged because they incurred a loss in the form of the cost of replacing the faulty seatbacks. We shall examine the propriety of the interm ediate appe llate court s affirmance of the trial court s dismissal of the petitioner s claims. A. Tort Claims Ord inarily, as noted, supra, damages for eco nomic loss are not ava ilable in a tort 7 action and are rec overable, if at all, in contract ca uses of ac tion and, in th e case of f raud, in actions for deceit. Gypsum, 336 Md. at 156, 647 A.2d at 410. We have explained the rationale for this general rule: The distinction between tort recovery for ph ysical injury and warranty recovery for econo mic loss de rives from policy conside rations wh ich allocate the risks related to a d efectiv e produ ct betw een selle r and th e purch aser. A manufacturer may be held liable for physical injuries, including harm to prop erty, caused by defects in its products because it is charged with the responsibility to ensure that its products meet a standard of safety creating no unreason able risk of harm. However, where the loss is purely economic, the manufacturer cannot be charged with the responsibility of ensuring that the product meet [sic] the particular expectations of the consumer unless it is aware of those expectations and has agreed that the product will meet them. Thus, generall y, the only recov ery for a purely economic loss would be under a contra ct theory. Decoster, supra, 333 Md. at 250-51, 634 A.2d at 1333 (citing Keeto n et al., supra § 101 at 708 (5 th ed. 1984) and N ote, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917 (1966)). There is an exception to the general rule, however: Even when a recovery, based on a defective product, is considered to be for purely economic loss, a plaintiff may still recover in tort if this defect creates a substantial and unreasonable risk of death or personal injury. Gypsum, 336 Md. at 156-57, 647 A.2d at 410. This Court adopted this exceptio n, an increasingly popular view, in Council of Coowners v. Whiting-Turner, 308 Md. 18, 25, 517 A.2d 336, 345. (1986). There, we recognized that, in limited circumstances, those in which a product defect presents a substantial, clear and unreasonable risk of death or personal injury, it is inappropriate to draw a distinction 8 between mere economic loss and person al injury. ... When o ne is person ally injured from a defect, he recovers mainly for his e conomic loss. Similarly, if a wife loses a husband because of injury from a defect in construction, the measure of damages is totally economic loss. We fail to see any rational reason for suc h a distin ction. Id., at 25, 517 A.2d at 3 45. (1986) (quoting Barnes v. Mac Brown and Company, 264 Ind. 227, 342 N .E.2d, 6 19, 621 (1976 )). See also, Drexel P roperties, Inc. v. Bay Colony club Condominium, Inc., 406 So.2d 505 (Fla.Dist.Ct. App . 1981) rev. denied 417 So.2d 328 (Fla. 1982), Barnes v. Mac Brown and Co., 264 Ind. 22 7, 342 N .E.2d 619 (1976); Kristek v. Catron, 7 Kan.A pp.2d 49 5, 644 P.2 d 480 (19 82); Juliano v. Gaston, 187 N.J.Super. 491, 455 A.2d 523 (1982) cert. denied, 93 N.J.Su per 491, 45 5 A.2d (1 983); Quail Hollow East Condominium Assoc. v. Donald I. Scholz Co., 47 N.C.App. 518, 268 S.E.2d 12 review denied, 301 N.C. 527, 273 S.E.2d 254 (1980); Terlinde v . Neely, 275 S.C. 395, 271 S.E.2d 768 (1980); A.E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 214 N.W.2d 764 (1974 ). Thus, in order to as sert a cogniz able produ cts liability theory of recovery, an action sounding in tort, but one premised on economic loss alone, the plaintiff must allege facts that demonstrate that the product at issue creates a dangerous condition, one that gives rise to a clear danger of dea th or personal injury. Whiting-Turner 308 at 2 7, 517 A .2d at 34 5. In Whiting-Turner, the appellants, residents and the Council of Unit Owners of the Atlantis Condominium, a twenty-one story condom inium build ing, broug ht an action , in tort, alleging that the appellees, the general contractor, developer and architects involved in the 9 planning, inspection and construction of the building, failed to con struct ten ve rtical utility shafts with materials having a fire resistance rating of two hours, as the applicable building code re quired . Id. at 22, 51 7 A.2d at 338. As a result of the defect, the appellants claimed that there was a threat to th e saf ety and welfare of the owners and occupants of the [condominium] and to the personal and real property of the owners and occupants. Id. The appellees demu rred, arg uing, inter alia, that, because the appellants failed to allege actual personal injury or property damage, they could not be liable in tort to [appellants] for purely economic loss. Id. at 24, 51 7 A.2d at 339. The Circuit Court for W orcester County sustained the appellees demurrer and granted the appellees subsequently filed motion for summary judgment. The court reasoned that the appellants had no cause of action in tort against the appellees due to lack of privity between the parties3 and because the appellees owed no duty to the appellants when the latter claimed only eco nomic loss. Id. at 24, 517 A.2d at 339 This Court reversed. We concluded that the issue of whether a duty will be imposed in tort depends upon the risk generated by the negligent conduct. Id. at 35, 517 A.2d at 3 In addition, to their economic loss argument, the appellees contended that they owed no duty to the appellants, there being no privity between them and, thus, the allegations of negligence were insufficient to withstand a motion to dismiss. Although the Circuit Court for Worcester County accepted the argument, grounding its ruling in the appellees favor partially on that basis, this court rejected it, holding that privity was not an absolu te requirem ent to a find ing of du ty when the a ppellees ex ercise of ca re in inspecting and constructing the condominium shafts foreseeably subjected to the risk of personal in jury ... a latent and un reasonab ly dangerous condition re sulting from their negligence. Whiting-Turner, 308 Md. at 21-22, 517 A.2d at 343-44. 10 345. The Court explained that a plaintiff should not have to wait for a perso nal tragedy to occur in order to rec over dam ages to remedy or repair defects[.] In the final analysis, the cost to the developer for a resulting tragedy could be far greater than the cost of remedying the conditio n. Id. at 35, 517 A.2d at 345. If, therefore, the conduct complained of creates a risk of death o r person al injury, this Court c ontinu ed, the action will lie for recovery of the reasonab le cost of cor recting the dangero us condition in a tort action s eeking pu rely economic loss. Id. at 35, 517 A.2d at 345. The Court explained: it is the serious nature of the risk that persuades us to recognize the cause of action in the absence of actual injury. Accordingly, conditions that present a risk to general health, wealth, or com fort but fall short of presenting a clear danger of death or personal i njury will not suffice. A claim that defective design or construction has produced a drafty condition that may lead to a c old or pneu monia would not be s ufficie nt. Id. at 35 n.5, 517 A.2d at 345 n.5. Accord ingly, given the serious risk of death or serious bodily injury that resulted from the appellee s failure to construct sufficiently fire-worthy utility shafts, this Court held that the appellants had asserted a cogniza ble neglige nce claim agains t the app ellees. Id. at 40-4 1, 517 A .2d at 34 8. U.S. Gypsum C o. v. Mayor a nd City Council of Ba ltimore, 336 Md. 145, 157-58, 647 A.2d 405, 411 (1994), is to like effect. There, the C ity of Baltimore filed a claim, seeking, inter alia, recovery in tort for the cost of discovering, managing, rectifying the effects of, and removing . . . asbestos-containing building material. Id. at 156, 647 A.2d at 410. Relying on the exception to the general bar to recovery for economic loss in tort where the 11 risk is of death or personal injury, id. (quoting Whiting-Turner, 308 Md. at 35, 517 A.2d at 345), this Court agreed tha t the City s allegatio ns met the th reshold set f orth in WhitingTurner. It held, therefore, that Gypsum should be responsible for the cost to the City of removing the haz ard. Id. at 157- 158, 64 7 A.2d at 411. I n so ho lding, we noted the great likelihood that those exposed to the asbestos-containing material in the City building w ould suffer serious injury in the event that it was not abated. This Court further explicated the app lication of the exception to the econ omic loss rule in Morris v. Osmose, 340 Md. 519, 667 A.2d 624 (1996). In Morris, the appellants sought to recover purely economic loss associated with the alleged deterioration of flame retardant treated (FRT) plywood used in the construction of the roofs of their townhouses. Id. at 526-27, 667 A.2d at 628-29. The appellants argued, in particular, that a chemical reaction, which occurred w hen FR T plywoo d was ex posed to m oderately high temperatures, weakened the wo od and the bon ding be tween the plan ks. Id. As a result, the appellants asserted that the roofs are unsafe and dangerous and at risk of premature failure Id. at 527, 667 A.2d at 629. They further [asserted] that there is an immediate threat of injury from walking on the roofs, and also the threat of the roofs collapsing and injuring the occupants within, and that the roofs cannot support any w eight, even a heavy snow fall. Id. The app ellants did not allege, it is to be noted, that any person had ever been injured as a result of the allegedly defective FRT firewo od. Id. at 536, 6 67 A.2 d at 633 . Inter alia, the 12 appellants asserted claims sounding in negligence an d stri ct liability, 4 believing that the threat of serious injury or d eath presented b y the faulty roofs was serious en ough, under WhitingTurner, to warrant recovery for the economic loss associated with re placing the roo fing. Id. 340 Md. at 528, 667 A.2d at 629. The trial court dismissed the complaint. With regard to the allegations in the tort claims, it reasoned that the appellants had not alleged a clear danger of physical injury or death as is required to make cognizable a claim for recovery of purely economic damages in tort. The trial court explained that at the time of the sale by defendants to the developers, the FRT plywood was not so defective as to present a clear and imminent danger of death or personal injury to the ultimate purchaser of the home. Id. 340 Md. at 529, 667 A.2d at 630. The Court of Special Appeals reversed the trial court s dismissal with regard to the implied warranty claim, but affirmed the dismissal of all the other counts, including the tort claims. Regarding those latter claims, the intermediate appellate court held that the risk of serious injury or death, as alleged by the appellants, amounted to [m]ere possibilities ... [that did not] meet the threshold of establishing a clear danger of death or personal injury. Id. 340 Md. a t 831, 66 7 A.2d at 630. On certiorari to this Court, the appellants reiterated their argum ent that, under the 4 The appellants also asserted a right to recovery under claims of breach of implied warranty, negligent misrepresentation, and violation of the Maryland Consumer Protection Act. 13 exception to the economic loss rule in tort enunciated in Whiting-Turner, the risk of serious injury or death from FRT treated plywood was sufficient to assert a claim for the recovery of monies spent to repair the roofs. Id. 340 Md. at 533, 667 A.2d at 631. The appellees argued that the risk of serious injury or d eath was not sufficie ntly clear as to invoke the excep tion. Id. We agreed with th e appe llees and the Co urt of S pecial A ppeals . Id. at 37. Affirming the dismissal of the appellant s tort claim,5 we exp lained that, in order to determine whether a valid tort claim exists under the exception to the economic loss rule, the court must examine both the nature of the damage threatened and the probability of damage occurring to determine whether the two, vie wed tog ether, exhib it a clear, serious, and unreasonable risk of death or personal injury. Id. 340 Md. at 53 3, 667 A.2d at 63 1-32. Furthermore, we expounded on the logic of this two -part ap proach , vis-a-vis the general rule barring recovery in tort for eco nomic loss es: This two part approach recognizes the negative effects that c ould occur if the econom ic loss rule was ab andon ed. See East River S.S. Corp v. Transamerica Delaval, 476 U.S. 858 , 870-71, 106 S. Ct. 2295[, 2301,] 90 L. Ed. 2d 865[, 876] (1986), (stating that an app roach rejec ting the eco nomic loss rule fails to account f or the need to keep pro ducts liability and c ontract law in separate spheres and to maintain a realistic limitation on da mages ). It balances these considerations, howev er, against the p ublic policy of e ncourag ing people to correct dangerous con ditions before tragedy results. Accord ingly, we do not 5 Although we agreed with the Court of Special Appeals, in dismissing the appellants tort and Consumer Protection Act claims, we reversed that court s holding that the appellants stated a sufficient claim for breach of implied warranty against the plywoo d man ufactu rers. Morris at 546, 667 A.2d at 638. 14 ordinarily allow tort claims for purely economic loss. But when those losses are coupled w ith serious risk of death or personal injury resulting from a dangerous condition, we allow recovery in tort to encourage correction of the dange rous co ndition . Morris, 340 M d. at 534 -35, 66 7 A.2d 624, 63 2. We also explain ed that, when analyzing the two elements, the critical test is not whether the plaintiff has alleged facts that meet an articulable threshold for both elements, but, r athe r, wh ethe r that plai ntiff has m et the threshol d to s atisf y either of the elements so long as, und er the fa cts alleg ed, both elemen ts are, at a minim um, pre sent. Id. at 533-34, 667 A.2d at 631-32. Thus, if the possible injury is extrao rdinarily se vere, i.e., multiple deaths, we do not require the probab ility of the injury occu rring to be as high as w e would require if the inju ry threaten ed we re less se vere, i.e. a broken leg or dam age to prop erty. Likewise, if the probability of the injury occurring is extraordina rily high, we do not req uire the injury to b e as severe as we w ould if the proba bility of the injury were lower. Id. 340 Md. at 533, 667 A.2d at 632. To illustrate, we referred to Whiting-Turner, which primarily concerned the potential sev erity of the injurie s that wou ld be incurre d as a result of the appellee s failure to co nstruct the co ndomin ium with the requisite fire-worthy support shafts. Id. at 533-34, 667 A.2 d at 632. T his Court pointed out that, even though, in WhitingTurner, no fire had actually occurred and the probability that the defect would cause the fire was not extraordinarily high, we allowed the plaintiffs to m aintain a tort action because the 15 nature of the possible damage was very serious - - multiple deaths and personal injuries. Id. See also U.S. Gypsum v. B altimore, 336 Md. 145, 156-57, 647 A.2d 405, 410-11 (1994), in which the Court recognized a tort claim against companies involved in the manufacture, distribution and installation of asbestos in Baltimore City buildings because the possib le injury inhalation of asbestos fibers causing serious diseases was coupled with a high probability that personal injuries thereby would result because everyone who used the buildin g could have b een ex posed to asbe stos fibe rs in the a ir. Turning to the facts of the case bef ore it, this Court held that the factors that persons who walk on the roofs may potentially suffer injury in the event that the roofs collapsed, or that the roofs might collapse under any significant pressure, such as a heavy snowfall, failed to meet the threshold for either element of the exception to the economic loss analysis enunciated in Whiting-Turner and its p rogeny. Id., 340 Md. at 536, 667 A.2d at 633 (1995). We reasoned that the appellants made no allegation that any injury has ever occurred since the roofs were installed on the plaintiff s townhouses . . . or that any of the roofs have collapsed because o f weathe r conditions or becaus e of the alleg ed degrad ation assoc iated with their construc tion. As no ted by the Court of Spe cial Appeals, mere po ssibilities are legally insufficient to allege the existence of a clear danger of death or serious personal injury. Id. Applying the thresholds established in Whiting-Turner, Gypsum, and Morris, we disagree with the intermediate appellate court, that the appellants in the case sub judice 16 asserted insufficient facts to meet the pleading threshold with regard to the risk of serious bodily injury. On the c ontrary, we believ e that the app ellants have alleged fac ts adequate to satisfy both elements of the analysis, the nature of the damage and the probability of damage prongs, for determining w hen an ex ception w ill lie to the gener al econom ic loss bar to recove ry. With regard to the first prong, the nature of the damage, the appellants aver that individuals have suffered extremely serious injuries, including paraplegia, quadr iplegia and/or death as a re sult of rear im pact collision s in the class v ehicles con taining the alle gedly defective seatbacks. Certainly, as in Gypsum, such injuries rise to the level of serious injury within the meaning enunciated in Whiting-Turner and Morris. Under this Court s instruction in Morris, that a plaintiff need only allege facts that satisfy one of the prongs of the analysis to an acceptable degree, the fact that the severity of the potential injury is so grave, in this case, is sufficient to meet the threshold for the petitioners recovery of economic losses, even if the probability that the injuries would occur is not as high. This Court, however, also concludes that the petitioners have alleged suf ficient facts to satisfy the second prong of the Morris econom ic loss analysis, as w ell, the probability that a serious injury, or d eath, wou ld occur as a result of the allegedly defective seatbacks. In its TAC, the petitioners alleged that thousands of individuals have been injured or killed as a result of the collapse of the class vehicle seatbacks in rear-end collisions. Indeed, the petitioners exhibit D in cludes spe cific record s of com plaints mad e to the National Highway 17 Traffic Safety Administration (NH TSA), in wh ich the drivers of class cars experienced the collapse of seatbacks in rear-end collisions resulting in no less than 38 reported injuries and 3 fatalities. The number of these incidents, as alleged, is certainly greater than those alleged in Morris, where the appellants alleged no actual record of past injury, a fact to which th is Court accorded great weight when holding that the appellants, in that case, did not meet the threshold for economic loss under the Whiting-Turner exception. Although we acknowledge the important goal of the general bar to recovery for purely economic losses, to keep products liab ility and contract law in separate spheres an d to mainta in a realistic limitation on dam ages, East River S.S. Corp v. Transamerica Delaval, 476 U.S. 858, 870-71, 106 S. Ct. 2295, 2302, 90 L. Ed. 2d 865, 876-77 (1986), it is exactly the risk of serious bodily injury involved in this case tha t the exceptio n to the eco nomic loss rule was intended to remedy, to encourag[e] people to correct dangerous conditions before tragedy results. Morris, 340 Md. at 534-35, 667 A.2d 624, 632. i. Negligence A complain t alleging neg ligence m ust contain the following elements: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant s breach of the duty. Valentine v. On 18 Target, 353 Md. 544, 549, 727 A.2d 94 7, 949 (19 99); BG & E v. Lane, 338 Md. 34, 43, 656 A.2d 307, 31 1 (199 5), citing Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994 ). The Court of Special Appeals affirmed the dismissal of the neg ligence claim solely on the basis that, quoting Morris, supra, 340 Md at 53 6, 667 A.2d at 63 3, the petitioners failed to articulate an injury in the form of economic losses sufficient to meet the required legal threshold of pleading the existence of a clear and extreme danger o f death or serious personal injury, as r equired by Whiting-Turner and its progeny. We reiterate that the standard for whether an allegation states a claim upon which relief can be granted does not require the petitioner to as sert facts sufficient to prove the claim, but rather those neces sary to allege a claim. As we have seen, the petitioners have met that burden, and thus, viewing all facts and in ferences in a light most favorable to the petitioners, we reverse the dismissal of the neg ligence cou nt. 6 6 The resp ondents a lso contend that [b]y exclu ding from the putative c lass all persons who h ave suffered perso nal injury as a result of the rearward co llapse of a Seat, (internal citation omitted), and by failing to allege any injury to any property belonging to Plaintiffs, the TAC concedes that Plaintiffs suffered no actual injury or loss under the common law of torts. (Respondents brief, at 10). We do not agree. 19 ii. Strict Liability The theory of strict liability is set out in the R ESTATEMENT (S ECOND) OF T ORTS § 402A (196 5): Special Liability of Seller or Product for Physical Harm to User or Consumer (1) One who sells any product in a defective c ondition un reasonab ly dangerous to the user or consumer or to his property is subject to liability for physical harm thereby cause d to the ultima te user or co nsumer, o r to his property, if (a) the seller is e ngaged in the busines s of selling su ch a prod uct, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contrac tual relati on with either. See Phipps v. General Motors Corp., 278 M d. 337, 3 41, 363 A.2d 955, 957 (1975). Strict liability advances the policy of requiring those wh o make a nd sell defe ctive produ cts to bear 20 the costs of the injuries that result therefrom. Id. at 342- 43, 363 A.2d a t 958. See also Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 901 (Cal. 1962) (holding that the cost of injuries caused by defective products should be borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. ). Official Comment c to § 402A states that a seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the con suming p ublic who may be injured by it; that the public has the right to and does ex pect . . . [and] public policy demands that the burden of accidental injuries caused by products intended for consumption to be placed upon those who market them and be treated as a cost of production against which liability insurance can be obtained; a nd that the c onsume r of such p roducts is entitled to the maximum protection at the hands of someone, and the proper persons to afford it are those who market the products. Official Comm ent i to § 402 A also instru cts that a product placed on the market reaches the threshold of being unreasonably dangerous to trigger strict liability when [t]he article so ld [is] dangerous to an extent beyond that which w ould be contem plated by the ordinary consumer who purchases it, with the ordinary knowledge commo n to the com munity as to its chara cteristics . To recover for injury under strict liability, a plaintiff must establish that: (1) the product was in a defective condition at the time that it left the possession or control of the seller; (2) that it was unreasonably dangerous to the user or consumer; (3) that the defect was a cause of the injuries, and (4) that the product was expected to and did reach the consumer withou t substan tial chan ge in its c onditio n. Phipps, 278 M d. at 344 , 363 A .2d at 95 8. 21 In its analysis and holding, the Court of Special Appeals made no specific mention of the petitioner s strict liability claim, but rather relied upon the same reasoning it used to resolve the negligence claim; namely that the petitioners failed adequately to [plead] the existence of a clear and extreme danger of serious personal injury, as requ ired by WhitingTurner and its progeny. Neither the Circuit Court nor the intermediate appellate court found any othe r eleme nt of a s trict liability cl aim lac king in the petitio ner s T AC. As we h ave discus sed, pursua nt to Whiting-Turner and its progeny, a plaintiff may overcome the ordinary rule that bars recovery for economic loss in to rt claims so long as he or she asserts that there is a strong likelihood that the threatened damage is of a serious nature and that it is reasonably probable that the da mage will occur. In other words, when the risk of serious in jury or death and the likelihood of the damage are great enough to reach the threshold enumerated in Whiting-Turner and Morris, the cost to remedy the product defect stands in the place of actual physical injury. We have already determined that the risk of serious injury is so great, and the potential injury in this case so severe that it reaches the threshold enumerated in Whiting-Turner. The respondent in th is case ha s not pres ente d a persu asive arg ume nt as to w hy a petitioner should be barred f rom recovery of econ omic losses under a strict liability theory when the product at issue creates a significant risk of death or serious injury. To be sure, the caveat enunciated in Whiting-Turner, that a consumer should not have to wait until injury or death has occurred to assert a claim when the likelihood of injury or death is g reat, is equally 22 applicable in the case of a strict liability claim, where a party has marketed an item that is unreas onably d angero us. The Official Comment to § 402 A notes, and we stated in Phipps and the Supreme Court of California stated in Greenman, that it is the man ufacturer th at is in the best position to absorb the cost of injuries that result from a product defect. Under the reasoning of Whiting-Turner and Morris, it is also the manufacturer who should absorb the cost when a product defect creates a serious risk of severe bodily injury or death, even though actual injury has not yet occurred. The alternative would be to require plaintiffs aware of the risk to run the risk and perh aps suffer serious bodily injury, debilitation, or even death, thus incurring damages far in excess, in both human and economic terms, of the costs of remedying the defect. This is needless risk, and even counterintuitive, considering the frequency of serious in juries and d eath that have b een alleged to occur when th e class of cars in the case sub judice are involved in rear collisions. iii. Negli gent Fa ilure to D isclose, F ailure to Warn , Concealment and Misrepresentation7 The petition ers aver that, in addition to the responde nts negligen t conduct in manufacturing automob iles with def ective seatba cks, the resp ondents a lso negligen tly 7 For purposes of this opinion, we shall refer to this claim as Negligent Misre presen tation. 23 misrepresented the existence of the defect in the class automobile seatbacks to the general public. The following elements a re required to assert a claim for negligent misrepresentation: (1) the def endant, ow ing a duty of c are to the plain tiff, negligen tly asserts a false statem ent; (2) the defendant intends that his statement will be acted upon by the plaintiff; (3) the defen dant has k nowled ge that the plaintiff will probably rely on the state men t, wh ich, if erroneous, will caus e loss or in jury; (4) the plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffers dama ge proximately caused by the de fendant s neglige nce. Virginia Dare S tores v. S chuman, 175 Md. 287, 291-92, 1 A.2d 897, 899 (1938); Martens Chevro let, Inc. v. Seney, 292 Md. 328, 336-37, 439 A.2d 534, 539 (1982); Gross v. Sussex, Inc., 332 Md. 247, 256, 630 A.2d 1 156, 11 61(19 92). See generally R ESTATEMENT (S ECOND) OF T ORTS §522 (1977). 8 8 Restatement (Second) of Torts §522 reads: (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 th em by their justif iable reliance upon the in formation , if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) Exce pt as stated in S ubsection ( 3), the liability stated in S ubsection ( 1) is limited to loss suffered (a) by the perso n or one o f a limited gro up of per sons for w hose ben efit 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 influenc e or know s that the recip ient so intend s or in a subs tantially 24 The Court of Special Appeals affirmed the dismissal of the negligent misrepresentation count on the same grounds that it dismissed the negligence and strict liability counts,9 beca use there had been no actua l inju ry and no allega tion of su ch in jury. Our cases make it clear that a plaintiff is not required to suffer personal physical injury to recover under a theory of neglige nt misre presen tation. Marten, supra, 292 Md. at 335-36, 439 A.2d at 538-39 (1982) (holding that pecuniary loss is compensable under an action for negligent misrepresentation, citing Brack v. Evans, 230 Md. 548 , 187 A.2d 880 (1963)). To that end, the Court in Village of Cross Ke ys v. Gypsum, 315 Md. at 754, 556 A.2d at 1132 stated: Although Whiting-Turner concerned negligent conduct, similar principles apply when negligent misrepresentation is involv ed. See Restatement (Second) of Torts § 311 co mment a (1965), noting that the rule pertaining to negligent misrepresentation involving the risk of physical harm represents a somewhat broader liability than the rule relating to liability for pecuniary loss resulting from n egligen t misrep resenta tion. similar transaction. (3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the trans actions in whic h it is inten ded to p rotect th em. 9 The Court of Special Appeals never specifically addressed the negligent misrepresentation claim as a se parate and indepen dent count. The C ourt did, however, address the availability of injury, in the form of economic loss under tort, when it stated, in its analysis, Appellants contend that the circuit court erred in granting appellees motions to dismiss because appellees were liable in tort for the cost of correcting the condition in Class Ve hicles. We disagree. A pparently, the co urt deeme d its determination that the Whiting-Turner exception to the general bar to recovery for econom ic losses und er a tort theory to ap ply to all of the pe titioner s claims sounding in tort. 25 Under this reasoning, therefore, economic losses qualify as a cognizable injury under negligent misrepresentation.10 iv. Fraudulent Conc ealment and Intentiona l Failure to Warn The essential elements for a claim of fraudulent concealment include: 1) the defendant owed a duty to the plaintiff to disclose a material fact; 2) the defendant failed to disclose that fact; (3) the defendant intended to defraud or deceive the plaintiff; (4) the plaintiff took action in justifiable reliance on the concealm ent; and (5) the plaintiff suffered damages as a result of the defen dant s c oncea lment. Green v. H & R Block, 355 Md. 488 , 525, 725 A.2d 1 039, 1059 (1999). Fraudulent Concealment is any statement or other conduct which prevents another from acquiring knowledge of a fact, such as diverting the attention of a prospective buyer from a defect 10 Althoug h the tort of n egligent m isrepresenta tion is genera lly rooted in negligence, in that, like negligence, it requires a duty, breach of duty, injury and causation, the major difference is that negligent misrepresentation focuses on affirmative statements made by the defendant that were intended to, and indeed, had the effect of, inducing the plaintiff to carry out some action in reliance on the false statements. As the Court in Village o f Cross K eys stated, [ t]o say...tha t a claim arises ou t of neg ligence , rather than misrepresentation, when the loss suffered by the injured party is caused by the breach of a ...duty to use due care in obtaining and communicating information upon which the party may reason ably be expe cted to rely in the c onduct of his econo mic affairs, is only to state the traditional...tort of negligent misrepresentation, .... 315 Md. at 755, 5 56 A.2 d at 113 2, quoting United States v. Neustadt, 366 U.S . 696, 706, 8 1 S. Ct. 1294, 1300, 6 L. Ed. 2d 614, 621 (1961). A claim of negligent misrepresentation, does not merge into a negligence claim because, if the plaintiff would have a cause of action based on the underlying negligence independent of the misrepresentation, that cause of action survives and is not merged into the later misrepresentation. Village of Cross Keys, Inc. v. Gypsum, 315 M d. at 755 , 556 A .2d at 11 32, citing Block v. Neal, 460 U.S. 289, 296-98, 103 S. C t. 1089, 1093-1094 , 75 L. Ed. 2d 67, 74 -75 (1983). 26 which otherw ise, he w ould ha ve obs erved. 11 A fraudulent concealment claim is caused, in part, by the intentional failure to warn. As this Court explained in Frederick Road Limited Partnership v. Brown & Sturm, 360 Md. 76, n.14, 756 A.2d 963, 976, n.14, citing Impala Platinum, Ltd. v. Im pala Sales (U.S.A.), Inc., 283 M d. 296, 323 -24, 389 A .2d 887, 90 4 (1978): Absen t a fiduciary relation ship, this Co urt has held that a plaintiff seeking to establish fraudulent concealment must prove that the defendant took affirmative action to conceal the cause of action and that the plaintiff could not have discovered the cause of action de spite the exe rcise of reas onable diligence, see, Walsh v. Edwards, 233 Md. 552, 557, 197 A.2d 424, 426-27 (1964); Fegeas v . Sherrill, 218 Md. 472, 476, 147 A.2d 223, 25-26 (1958), and that, in such cas es, the affirm ative act on th e part of the defenda nt must be more than mere silence; there must be some act intended to exclude suspicion and prevent injury, or there must be a duty on the part of the def endant to disclose such f acts, if k nown . Impala, supra, 283 Md. at 323-24, 389 A.2d at 11 The petition ers in this case also pled tha t the respon dents eng aged in a f ailure to disclose. As this court stated in Fegeas v . Sherrill, 218 Md. at 476, 147 A.2d at 225: Concealment and non-disclosure are closely related and in any given situation overlap. . . . Concealment is any statement or other conduct which prevents another from acquiring knowledge of a fact, such as diverting the attention of a prospective buyer from a defect which otherwise he would have observed. When done without intent to mislead and w ithout misrepresentation, it has no eff ect except where the re is a duty to disclose. Non-disclosure is a failure to reveal facts. It may exist where there is neither representation nor concealment. Except in a few special types of transact ions such as insura nce c ontracts and transactions betw een a fidu ciary a nd his benefi ciary, there is no general duty upon a party to a transaction to disclose facts to the other party. Id. (Citations omitted). For all intents and purposes, therefore, fraudulent concealment includes the situation whe re the defendant actively unde rtakes conduct or utters statements designed to, or that would, divert attention away from the defect. A claim of failure to disc lose, on the o ther hand, re quires only that th e defend ant remain silent about, or omit, f acts that the def endan t had a d uty to discl ose. 27 904. With regard to the fraudulent concealment claim, the Court of Special App eals specifically stated that, because no injury has occurred, appellants are unable to assert that they have suffered damages as a result of any concealment of the alleged defect. The c ourt further held that, [e]ven assuming arguendo that a pre-injury lawsuit is recogn ized in Maryland, [the trial court] correctly dismissed appellant s tort-based claims . . . by concluding that the economic loss doctrine would not support the cause of action being sought by the plaintiff in this case. Id. (slip op. at 16-17). This court is aware of no reason, nor has one been presented to it, that, so long as sufficient allegations of a serious risk of bodily harm or death has been made, under the Whiting-Turner analysis, why the petitioners should be barred from asserting a claim for econom ic loss resulting from frau dulent con cealment. The Court of Special Appeals decision to affirm summary judgment regarding the fraudulent concealment claims, therefore, is reversed. v. Unfair o r Deceptiv e Trade P ractices und er Maryland Consum er Protect A ct The Court of Special A ppeals dete rmined, an d the respo ndents arg ue in this Co urt, that the petitioners have failed to articulate any actual injury or loss to sustain a Consumer Protection Act claim.12 As w e will elu cida te, ac tual p hysical inj ury to a person o r property 12 The Court of Special Appeals dismissed the petitioners Consumer Protection claim together along with the warranty, fraudulent concealment, and civil conspiracy 28 or actual prod uct malfu nction is not required to state a cognizable injury under the Consumer Protection Act and, thus, the dismissal of the petitioners Consum er Protection Act claim must also be reversed. The Consumer Protection Act, codified at Maryland Code (1975, 2005 Replacement Volume) §§ 13-101 et seq. of the Commercial Law Article was intended to provide minimum standards f or the protec tion of consumers in the S tate. § 13-101. As this C ourt explained in Morris v. Osmose Wood Preserving, supra: The General Assembly enacted the Consumer Protection Act . . . in response to mounting concern over the increase of deceptive trade practices in connection with sales of merchandise, real prope rty, and services and the extension of credit. . . . The Legislature was concerned that these deceptive practices were undermining public confidence in merchants . . . . It found existing federal an d State law s to be inad equate, po orly coordinated and not widely know n or ade quately en forced , and found that improved enforcement procedures [were] necessary to help alleviate the growing problem of deceptive consumer practices. . . . With the Act, therefore, the General Assemb ly intended to set certain m inimum statewide standards for the protection of consumers across the State and to take strong protective and preventative steps to investigate unlawful consumer practices, to assist the public in obtaining relief from these practices, and to prevent these practices from o ccurrin g in M aryland. 340 Md. at 536-37, 667 A.2d at 633 (citation s omitted). T he Act inter alia, prohibits un fair and deceptive trade practices in the sale, lease, rental, loan, or bailment of any consumer goods, consu mer rea lty, consum er servic es... §13-303 (1). Deceptive trade practices claims in reliance on the Circuit Court s determination that the complaint does not include any allegation of injury, actual harm, or pro duct malfunction. 29 include, as re levant: (1) False, falsely disp araging, or m isleading ora l or written state ment, visual description, or other representati on of any k ind w hich has the ca paci ty, tendency or effect of deceiving or misleading consumers;[13] (2) Rep resentation th at: (i) Cons umer g oods . . . have a s ponsorship, a ppro val, a cces sory, characteristic, ingredient, use, benefit, or quantity which they do not have; **** (iv) Consumer goods, consumer realty, or consumer services are a particular standard, qu ality, grade, style or mo del which the are not; (3) Failure to state a mate rial fact if the failure deceives or tends to deceive; **** (9) Deception, fraud, false pretense, false premise, misrepresentation, or knowing concealment, suppression, or omission of any material fact with the intent that the consumer rely on the same in connection with: (i) the pro motion or sale o f any con sumer goods ... § 13-301. A party alleging unfair or deceptive trade practices may file a complaint with the 13 In order to satisfy this element, the seller of consumer goods or services must have, either affirmatively or by omission, misrepresented a material fact about the goods. Maryland Code, (1975, 2005 Replacement Volume) § 13-301 (3) of the Commercial Law Article; see also Green v. H & R Block, 355 Md. 488, 523, 735 A.2d 1039, 1058 (1999) (holding that failure of tax preparation service to inform clients that portions of finance fees retain ed by the servic e amoun ted to suffic ient omission to allow the petitioner to proceed o n his Con sumer Pro tection claim ; State v. Cottman Transmission Sys., 86 Md. App. 7 14, 736 587 A .2d 119 0, 1201 (1991 ), cert. denied 324 Md. 121, 596 A.2d 627 (1991) 30 Attorney General s office,§13-401,14 or bring a private cause of action. §13-408.15 While any person may bring an action to recover for injury or loss sustained b y him as the resu lt of a practice prohibited by this title, §13-408, a party who files a complaint with the Attorney General, who then brings the action, is not required to allege that actual injury has occurred. §13-302.16 This Court has held, however, that a private party suing under the Consumer Protection Act must establish actual injury or loss. Citarama nis v. Hallow ell, 328 Md. 142, 14 §13-401 of the Co mmercia l Law A rticle reads, as re levant, (a) A co nsumer w ho is subjec ted to a violatio n of this title ma y file with the Division a written complaint which states: (1) The name and address of the person alleged to have committed the violation complained of; (2) The particulars of the violation; and (3) Any other information required by the Division. (b) After the filing of a complaint, the Division shall investigate the allegations to ascertain issu es and fac ts. If approp riate, the Divis ion shall refer a complaint to the Federal Trade Commission. 15 Maryland C ode, (1975 , 2005 Re placemen t Vol.) § 13 -408 read s, in pertinent p art: (a) Actions authorized. In addition to any action by the Division or Attorney General authorized by this title and any other action otherwise authorized by law, any person may bring an action to recover for injury or loss sustained by him as the result of a practice prohibited by this title. (b) Attorney s fees. Any person who brings an action to recover for injury or loss under this section and who is awarded damages may also seek, an d the co urt may aw ard, reas onable attorney's f ees. 16 Maryland Code, (1975, 2005 Replacement Vol.) §13-302 of the Commercial Law Article read s: Any practice prohibited by this title is a violation of this title, whether or not any consumer in fact has been misled, deceived, or damaged as a result of that practice . 31 153-54, 613 A.2 d 964, 96 9 (1992); Morris v. Osmose, 340 Md. 519, 538 n.10, 667 A.2d 624, 635 n.10 (199 5); McGraw v. Ford, 124 Md. App . 560, 581, 723 A .2d 502, 512 (199 9), cert. denied, 353 Md. 473, 727 A.2d 382 (1999). See Maryland Code, (1975, 2005 Replacement Vol.) §13-408 of the Commercial Law Article ( any person may bring an action to recover for injury or loss sustained by him as the result of a practice proh ibited by this title ). We have, in earlier cases , established th at, in order to articulate a cognizable injury under the Consumer Protection Act, the injury must be o bjectively identifiable. In other words, the consumer must have suffered an identifiable loss, measured by the amount the consumer spent or lost as a result of his or her reliance on the sellers misrepresentation. Golt v. Phillips, 308 Md. 1, 11-14, 17 A.2d 328, 333-335 (1986); Citarama nis, 328 Md. at 151-53, 613 A.2d at 96 8-70 (199 2); Morris v. Osmose, 340 Md. at 538 n.10, 667 A.2d at 635 n.10 (1995); McGraw v. Ford, 124 M d. App . 560, 581, 72 3 A.2d 502, 51 2 (199 9), cert. denied 727 A.2d 38 2, 353 Md. 47 3 (1999). In Golt, the petitioner entered into a rental agreement to lease the respondent landlord s apartment. 308 Md. 1, 5, 17 A.2d 328, 330. The petitioner agr eed to mo ve into the premises only upon the landlord s promise that, prior to the move in date, certain cleaning and repairs would be done. When the petitioner took possession of the prope rty, however, the responde nt had not completed the requested repairs. The petitioner paid rent and occupied the apartment for three months, during which time the respondent made no attempt to remedy the condition of the apartment. The petitioner, therefo re, contacted the Baltimo re City 32 Department of Hou sing and C ommu nity Development, which conducted an inspection of the dwellin g. Id. Upon inspection, the Department of Housing discovered numerous housing code violations, which include d, inter alia, lack of toilet fa cilities, defective door lock s, and the lack of fire exits and fire doo r. Id. at 6, 17 A.2d at 330. Additionally, the housing inspector learned that the respo ndents did not possess the appropriate license to lease the building as a multiple-family dwelling unit. The respondent was ordered to make th e requisite repairs and obtain the proper license. Id. Rather than obtain a license and make the repairs, the respondent chose to evict the petitioner, forcing the petitioner to move to a new, more expensive apartment. Furthermore, the respondent refused to refund all of the petitioner s security d eposit, w ithhold ing a po rtion of it for on e mon th s rent and fo r utility char ges. The petitioner filed suit in District Court for violation of the Consumer Protection Act and seekin g recov ery of, inter alia, his secu rity depos it. Id. The District Court found that the petitioner was entitled to the return of the total amount of his November rent because the dwelling was unlicenced, and, therefore illegal to rent, id. at 6, 517 A.2d at 330, and that the respondent had improperly withheld the security deposit. The District Court held, however, denied the petitioner relief under the Consumer Protection Act, holding that he had viewed the premise s prior to mo ving in and, thus, was fully aw are of th eir cond ition. Id. The Circuit Court for Baltimore City dismissed the petitioner s appeal and this court granted certiora ri. Id. at 7, 517 A.2d a t 331. 33 We reversed, holding that the failure of the resp ondents to disclose the material fact that it did not hold a license to re nt the prem ises as a mu lti-family unit amounted to a violation of the Co nsumer P rotection A ct. Id. at 9, 517 A.2d at 332. Particularly, we stated: Implicit in any advertisement and rental of an apartment is the representation that the leasing of the apartment is lawful. Baltim ore City C ode, A rt. 13, § 1101 (1983 Re pl. Vol.) exp ressly prohibits the operation o f any multiple family dwelling without a license or temporary certificate. As [the responde nt] had neither a license nor a temporary certificate, it violated the City Code. Con sequ ently, [the respondent s] advertisement and rental of the apartment was a misleading . . . statement . . . or other representation of any kind which has the cap acity, tend ency, or e ffect o f dece iving o r mislea ding co nsume rs. Maryland Code (1983 Repl. Vol.), § 13-301 (l) of the Commercial Law Article. Id. Recogn izing that the p urpose of a licensing sc heme serv ed the imp ortant purpose of ensuring that landlords do not rent apartments that are h azardous to the safety or we lfare of the people, id. at 13, 517 A.2d at 334, we noted that licensing is an integral part of the City s effort to maintain safe residen tial conditions for its citizens. To that end, we explained: Dwellings that are not licensed provide no opportunity for the City to ensure minimum living conditions. Furtherm ore, an ann ual license fe e for a mu ltiple dwelling unit is only $20 .00 per dw elling unit . . . It is evident that the license fee is charged to support the cost of inspections, and not to rase revenue. Therefore, [the respondents] may not retain any benefits from the unlicenced lease and [the Petitioner] may recover his full damages. Id. at 13-14, 517 A.2d at 334. With regard to the petitioner s loss, this Court determined that he was entitled to 34 restitution of the total am ount he pa id in rent, as well as consequential damages, including the cost of moving to a new apartment and the differenc e in cost betw een reason able substitute housing and the rental charged for the remainder of the legal term of his lease w ith the [respondents]. Id. at 13-1 4, 517 A .2d at 33 4. In Citarama nis, this Court further clarified when an injury is deemed sufficiently pled to state a consumer protection claim. In that case, the petitioner rented a house from the respondent homeowners for a period of one year. During that time, the petitioners did not complain regarding the condition of the home and, despite the fact that the respondent increased the rent, extended their tenancy beyond the first year, Citarama nis, 328 Md. at 14445, 613 A.2 d at 965. D uring the ten ancy, only minor repairs w ere ma de on th e hom e. After the petitioners informed the respondents that they planned to move, they learned that the respondents, when they rented the house, did not hav e a license to do so. Id. Armed with that information, the petitioners filed, in the Circuit Court for Howard Cou nty, a complaint alleging that the respo ndents had engaged in unfair and deceptive trade practices prohibited by the Maryland Consumer Protection Act and praying the return of all of the rent they paid to the res ponde nt durin g their te nancy. Id. The respondents did not dispute that they failed to obtain a lice nse befo re renting the ir home to the petitioners, nor did they dispute that they failed to obtain the license at any time during the petitioners tenancy. Upon cross-motions for summary judgment, the Circuit Court granted the petitioners motion, relying primarily on this Court s reasoning in Golt, and 35 awarded the petitioners the full amount of the rent they paid to the responde nts during th eir tenanc y. Id. at 146, 6 13 A.2 d at 966 . The Court of Special Appeals reversed, holding that because the [petitioners] had not demonstrated that any condition of the prem ises during their tenancy constituted a substantial housing code violation . . . or the lack of licensure had caused a diminution in value of the property they had not incurred actua l damages, a prerequ isite to recovery in a private action under the Consumer Protection Act. Id. at 147, 613 A.2d at 966 (quoting Hallow ell v. CitaraM anis, 88 Md. Ap p. 160, 594 A.2d 591 (1991). Before this Court, the petitioners argued that the condition of the house in that case was irrelevant. They relied on the following language in Golt: It is evident that the [m ultiple family dw elling] licensing fee is charg ed to support the cost of inspections, and n ot to raise revenue. Therefore, Phillips Brothers may not retain any benefits from the unlicen ced lease, an d Golt may recove r his full d amag es. Id. at 150, 6 13 A.2 d at 967 . Recognizing that, w ith regard to the Golt decision, [b]ecause of the obvious actual loss and dam age suffe red by the tena nt [in that case], w ho paid ren t for wha t proved to be an uninhabita ble apartment, we realize now . . . that we spoke much too broadly in making the statement just quoted, id. at 150, 613 A.2d at 967, we distinguished the situation in Golt from the one at bar. We noted that, in Golt, as a result of the landlord s failure to obtain a license and abide by the requirements of the Baltimore City Code, the tenant was forced to 36 live in conditions violative of basic health and safety, including no toilet in [the tenant s] apartmen t, no fire doors, defective door locks, and no fire exits. 328 Md. at 148, 613 A.2d at 966. Furthermore, this Court clarified, the tenant in Golt was evicted w hen the landlord decided not to obtain a license as required by the City, which required the tenant to incur moving expenses and an increase in rent when he had to lease a new a partme nt. Id. at 147-48, 613 A.2d at 966. By contrast, the CitaraManises a lleged neither uninhabitable co nditions nor monetary loss as a resu lt of their landlo rd s failure to o btain a license . This Cou rt explained : the CitaraManises do not allege that the house they rented was unclean, unsafe, unhab itable or unsuita ble in an y regard. T o the contrary, during argument before the trial judge, the [petitioner] s counsel explicitly argued that the condition o f the prope rty was irrelevant because the basis of their cause of action is misre presentation regarding th e failure to licence, not the condition of the property. Indeed, the [petitioners] elected to extend their tenancy and remain on the premises for another six months after the termination of the origina l lease at a higher rent. Id. at 149, 6 13 A.2 d at 967 . We further elucidated that, under the Cons umer Pro tection Ac t a party may pursue a public remedy, by filing a claim with the Attorney General, a private remedy, by filing a private cause of action, or both. We noted, however, that there is a difference between the two options with regard to the necessity of pleading injury or harm: Notwithstanding the availability of both public and private rem edies to consumers, the Legislature has established a clear distinction between the elements necessary to maintain a public enforcement proceeding versus a private enforcement proceeding, In a public enforcement proceeding any practice prohibited by this title is a violation . . . whether or not any consumer 37 in fact has been misled, deceived, or damaged as a result of that practice. § 13-302. In cont rast, a private enf orcemen t proceedin g pursuan t to § 13-408 (a) expressly only permits a consumer to recover for injury or loss sustained by him as the result of a practice prohibited by this title. § 13-408 (a). Section 13408 (a), therefore, requires and aggrieved consumer to establish the nature of the actual injury or loss that he or she has allegedly sustained as a result of the prohibited practice. This statutory construction creates a bright line distinction between the public enforcement remedies available under the CPA and the private r emed y availabl e unde r § 13-4 08 (a). Id. at 151, 613 A.2d at 968. The requirement that parties plead actual injury or harm in a private cau se of action under the C onsume r Protection A ct: is said to prevent aggressive consumers who were not personally harmed by the prohibited conduct, or even involved in a transaction with the offending businessman, from institutin g sui t as s elf-c onst itute d private attor neys general over relatively minor statutory violations. Another fear is that the powerful weapo n given to consumers in the form of the private remedy was capable of being u sed impro perly for harassment and improper coercive tactics. Id. (quoting 1 H. A LPERIN & R. C HASE, C ONSUMER L AW: S ALES P RACTICES AND C REDIT R EGULATION § 136 a t 193). We acknow ledged the differing in terests sough t to be promoted by the public and private enforcement proceedings. [T]he CPA s public enforcement mech anisms are set up to pre vent poten tially unfair or deceptive trade practices from occurring, even befo re any consumer is injured, wh ereas § 13 -408 (a) req uires that actu al injury or loss be sustained by a consum er before re covery of da mages is p ermitted in a p rivate cause of action. A construction of the CPA that would establish § 13-302 as a benchmark to determine whether a consumer has sustained injury or loss within the me aning o f § 13- 408 (a) is both s trained a nd illog ical. Id. at 153, 613 A.2d at 969 (quoting Com ment, Maryland s Cons umer Protection Act: A 38 Private Cause of Action for Unfair or Deceptive Trade Practices, 38 Md. Law Rev. 733, 739 n.50 (1 979). With those rules in mind, the Court held that, unlike the petitioner in Golt, the CitaraM anis petitioners neither claimed that they received les s than the fu ll benefit of th eir agreement nor incurred any costs as a result of the respon dents failure to obtain a license; they alleged no injury or loss und er the Con sumer Pro tection Ac t. In the case sub judice, it is clear that the petitioners have alleged facts constituting a loss. Particularly, the petitioners alleg e that, as a resu lt of the respondents misrepresentation or omission, the y suffered a loss, measured by the amount it will cost them to repair the defective seatbacks.17 In Golt, the amount of the loss was quantified, in part, by the amount 17 The reasoning of the United States District Court for the Southern District of Indiana, in In re Bridgestone/Firestone, Inc., 155 F. Supp. 106 9 (2001) rev d on other grounds, 288 F.3d 1012 (7th Cir. 2002), is instructive. There, the plaintiffs sued the defendant tire manufacturers for violation of the Tennessee Consumer Protection Act and the Michigan Consumer Protection Act. They sought recovery of the diminution in value of the c lass auto mobile s as a res ult of alle gedly de fective tire tread s. Id. at 1076-77. The applicable consumer protection acts provided that a plaintiff could recover for injuries so long as the plaintiff suffere [d] ascertainab le loss of money or property as a result . . . of an unfair or deceptive act or practice... id., 155 F. Supp. 106 9, 1097 or suffe re[d] loss as the re sult of a violatio n of th[ e] act , id., respectively. The court denied the defendants motion to dismiss the consumer protection claims for failure to state an injury, reasoning that loss under, both States version of the Consumer Protection Act included the [failu re to] rec eive w hat [a p laintiff] expec ted to rec eive. Id. at 1098 (quoting Mayhall v. A.H. Pond Co., Inc., 129 Mich.App. 178, 341 N.W.2d 268, 271-72 (1983). Noting that the loss can arise from the frustration of [the plaintiff s] expectations, as created by the defen dant , id., the court continued: [I]t is of no consequence that most Plaintiffs have not alleg ed that th ey tried to s ell, trade in , or repla ce their T ires or E xplore rs. . . . Plaintiffs need not allege that they ever tried to sell or trade in their tires or vehicles or that they experienced tread separation in order to state a loss. Id. Similarly, in the case sub judice, in order to allege a loss under the consumer protection act, the petitioners need 39 the petitioner had to pay to remedy his situation; namely, the difference between the amount he had to pay to rent another apartment and the rent he was originally paying in the unlicenced apartment. In Citarama nis, the petitioners articulated nothing they had lost as a result of the alleged misrepresentation. We c onclude that the alleged d amages in this case are more like those in Golt, in that they constitute no more than the amou nt it would tak e to remedy the loss they incurred as a result of the respondents alleged deceptive trade practices. Thus, we hold that they have set forth sufficient facts of injury or loss to withstand dismissal of the c onsum er prote ction cla im. Sufficiency of Pleading the Fraud-Based Claims The Court of Special Appeals also dismissed the petitioners fraudulent concealm ent, intentional failure to warn and C onsumer Pro tection Act claims on the basis that the petitioners failed to alleg e sufficien tly particularized fa cts with reg ard to those counts. It concluded: Fraud-based claims, such as unfair trade or deceptive trade practices pursuant to the Maryland Consume r Protection A ct, must iden tify actionable misrepresentations. As to each of their fraud-based claims, appellants make vague assertions about generalized statements attributed to no particular appellee and/or alleg edly do not constitute actionable misrepresentations. Such statements do not constitute actionable misrepresentations. The allegations made in appellants complaint are simp ly not sufficien tly particularized to only articulate some manifestation of loss. The fact that they have not yet repaired the defective seatbacks is of no import so long as the petitioners have alleged a difference between what was expected and w hat was received as a result of the respondents misrepresentation. 40 satisfy M aryland s standa rd for p leading a fraud action. 18 In their brief in this Court, the respondents argue, that THE INSUFFICIENCY OF THE PLAINTIFF S FRAUD-BASED CLAIMS IS NOT PROPERLY BEFORE THE COU RT. Relying on Maryland R ule 8-303 (b) (1), whic h states that [ t]he petition sh all present accurately, briefly, an d clearly wha tever is essen tial to a ready and adequate understanding of the poin ts requiring consideration, the respondents assert that, because the petitioners failed to inclu de, in their Petition for Writ of Certiorari to this Court, an argument addressing the intermediate appellate court s determination that the fraud-based claims w ere insufficiently particularized, they have effectively waived that argument. The Court of Special Appeals decision with regard to that argument, therefore, they argue, should be left undisturbed. This Court disagrees. Although the petitioners did not assert, in their Petition for Writ of Certior ari, a question chal leng ing the propr iety of the Court of Spe cial Appe als dismissal o f their consumer protection claim for lack of particularity, the petitioners do, in subsection E of the argument portion of the petition, aver that The Allegations in the TAC are Suffic iently Specif ic. The petition ers argue a t length that the y sufficiently pled, with adequate detail, the 18 In its discussio n of the pe titioners failure to sufficien tly allege particular f acts to plead its frau d based c laims, the cou rt only specifically m entions the p etitioners failur e to plead the Consu mer Protection Ac t claim and the conspiracy claims. T he court presuma bly omitted the f raudulent c oncealm ent and inte ntional failure to warn c ounts from its disc ussion, bec ause it had a lready determ ined that eco nomic loss was not a recogniza ble injury in tort. 41 injury component of the fraud-based claims.19 On page 15 of the Petition, the petitioners assert that they pled sufficient facts to allege all of th e elemen ts of the f raud -bas ed cl aims . Particul arly, the petitioners argue that, in their TAC, they alleged [f]acts further describing the Defect, its origin, its severity, and the exposure to harm to Appellants and Class Members [which were] grouped into sections 19 We note that the petitioners appear to have been responding to the Court of Special Appeals determination that they had insufficiently pled injury to recover on the substantive claims in their TA C. In fact, throughout the m ajority of the opinion, the Court addressed each of the petitioners substantive counts only to the exten t that they failed to articulate an appropriate injury. This is in line with what the Circuit Court judge determined when, in the brief decision he delivered from the bench, it stated: There is no dispute that the plaintiffs are bringing a cause of action in which part of their cause of action does not include any allegation of injury, actual harm, or product malfunction. It is alleging a defect and it is alleging a def ect without nay injury or loss to the plaintiffs. Now, the plaintiffs have argued strenuously, and have eve r effectively pre sented reas ons that they sh ould be allo wed to pursue this cause of action, and at the risk of being accused of suffering from myopia, the law in Maryland is not yet such that this cause of action should be permitted to continue. Whiting-Turner does n ot apply to this case . . . . It is clear to me that this is a case that is not recognized as a cause of action in Maryland. In addition, the economic loss doctrine would not support the cause of action being sought by the plaintiffs in this case, and there is insufficient basis to allow a fraud claim to continue against these defen dants. With rega rd to the frau dulent con cealment, w arranty, Consu mer Prote ction Act, and civil conspiracy claims, the intermediate appellate court stated, generally, at the beginning of its analysis, Appellants contend that Judge Rupp erroneously dismissed [these counts]. . . . We disagree. Judge Rupp dismissed these claims because the complaint does not include any allegation of injury, actual harm, or product malfunc tion. In fact, it is o nly in the discuss ion of the p etitioners last co unt, civil conspiracy, that the court makes any mention that the petitioners failed to plead, generally, the fraud-based counts. 42 entitled Risk of se vere injury or de ath (paragra phs 27-32 ), Autom obile seat as a safety device (paragraphs 33-39 ), Weakness of the Seats (paragraphs 40 -42), Thirty-year industry awareness of Defect (paragraphs 43-54 ), The 30-year cover-up (paragraphs 55-70 ), Platforms (paragrap hs 71-72) , Coordin ation of Efforts (paragraphs 73-77), Safe alternative designs (paragraphs 7 8-80), M arketing; C oncealm ent of kno wn De fect (paragraphs 81-85), and Lack of consumer awareness of Defect (paragraphs 86-91). Although, it is true that the gist of the petitioners argument in its Supplemental Petition regarding the dismissal of the fraudulent concealment and consumer protection claims, focused, primarily, on the sufficiency of their allegations of injury, we note that, as a matter of course, the petitioners also included, by recapitulation of those facts supporting each element o f the fraud claims, an arg ument tha t all of the facts, as pled, were sufficient to state their fraud claims. We conclude that this is sufficient to preserve the arguments on appeal. We also believe that the petitioners amply pled that the respon dents mad e actionable misrepresentations or omissions to support their fraud allegations. For example , with regard to the their fraudulent concealment and intentional failure to warn claims,20 the petitioners allege, in paragraph number 43 of the TAC that [respondents] GM, Ford and Chrysler have 20 Although it may be true that the facts, as alleged under the Claim headings at the end of the petitioners TA C, constitute vague allegations o f wrongdoin g, the petitioners prefaced each co unt with the following : The allegations in the prece ding paragraphs are hereby incorporated by reference. Those preceding paragraphs constitute the flesh of the Complaint and are replete with facts that support the fraud claims. 43 known the risk of injury associated with the [def ective seatbacks] for ove r 30 years. Saturn has known of the risk since Saturn came into existence. Paragraphs 44 through 54 provide facts that support that assertion. Paragraph s 55 through 72 su pport the petitioners allegation that, despite their knowledge of the defective seatbacks, the respondents have engaged in a 30-year cover-up of the product malfunction.21 Paragraphs 81 through 85 allege that the petitioners have concealed the existence of the seatback def ect. To that end, the petitioners assert the following: 81. Despite D efendan t s knowle dge that the seats are un reasonab ly unsafe and that preventab le injuries and death will re sult, they have continued to manufacture, market, distribute and sell Class Vehicles equipped with the seats. 82. Defend ants know ingly and inten tionally concealed from the public, including Plaintiffs and the Class Members, the risk of substantial injury or death f rom Se at Colla pses. These allegations, as written, certainly reach the threshold of pleading misrepresentation or omission to withstand the dismissal of the petitioners fraudulent concealment and Consumer Protection Act claims. 21 For exam ple, paragra ph num ber 55 read : GM h as approached se at safety in two ways: Outw ardly, GM denied the re was any problem with the strength of its seat backrests and promoted a standard that it knew was unreasonably unsafe. Internally, GM conducted research that showed that strong seats were a major factor in the survivability of occupants in rear-impa ct collisions, and that its seats were unreasonably unsafe. GM concealed its damaging research from government and the public, and carried on this duplicity for over 30 years. Only through litigation, after lengthy discovery battles in other suits, has the truth been exposed. 44 vi. Civil Co nspiracy Claim A claim for civil conspiracy requires proof of the following elements: 1) A confederation of two or more persons by agreement or understanding; 2) some unlawful or tortious act done in furtherance of the conspiracy or use of unlawful or tortious means to accomplish an act not in itself illegal; and 3) Ac tual lega l dama ge resu lting to th e plaintif f. Van Royan v. Lacey, 262 M d. 94, 97-98 , 277 A.2d 13, 14-15 (1971); Damazo v. Wahby, 259 Md. 627, 270 A.2d 81 4 (1970); Green v. Washington S uburban Sanitary Com m n, 259 Md. 206, 221, 269 A.2d 815, 824 (1970). Th is Court ha s consistently held that conspiracy is not a separate tort capable of independently sustaining an award of damages in the absence of other tortious injury to the plaintiff. Alleco Inc . v. The H arry & Jeane tte Weinberg Foundation, Inc., 340 Md. 176, 189, 665 A.2d 1038, 1044-45 (1995 ), quoting Alexander v. Evander, 336 M d. 635, 645 n.8, 650 A .2d 260, 26 5 n.8(199 4); Van Royan, supra. Similar to its reason f or affirmin g the dismis sal of the fra ud claim, the intermediate appellate court affirmed the dismissal of the civil conspiracy count on the basis that the petitioners failed to allege sufficient facts adequately to plead the elements of civil consp iracy. To that end, quoting Manikhi v. Mass Transit Admin., 360 Md. 333, 359, 758 A.2d 95, 109 (2000), the court he ld that the petitio ners civil conspiracy charge amounted to vague, confused, and extremely ambiguous allegations [that were] insufficient to state a claim for civil con spiracy. 45 As we have seen, this Court has already determined that the petitioner s tort claims were sufficiently pled. Therefore, the petitioner has alleged a tortious act upon which the conspiracy claim could be based. The question then is, whether the petitioners have pled adequate facts to allege that the respondents worked in concert to carry out the fraudulent conce almen t. In the Civil Conspiracy count, the petitioners state, as a preliminary matter, that [t]he allegations in the preceding paragraph are hereby incorporated by reference. Paragraphs 73 through 77 then detail the facts upon which the petitioners rely for support of their conspiracy claim: 73. GM, Ford and Chrysler coo rdinated the ir efforts, shared informatio n and planned together to oppose the implementation of any reasonable standard for seat backrest strength. Consistent with this effort, Defendants went three decad es with out stren gthenin g the se at back rests in m ost of th eir vehic les. . . 74. In 1992 the television program, 60 Minutes aired a story on auto seat failures. This prompted F ord to start a project c ode-na med, Straw -Dog , to develop defenses against claims based on seat failures. Straw Dog was coordinated with sim ilar projects by GM and Chrysler. 75. In 1993, while it was aware that moving barrier tests were more realistic and accurate than static tests for assessment of sea t integrity in rearimpact collisions, Ford recommended static tests to NHTSA. As a result of collusion with GM, and while aware of the falsity of its position, Ford argued to NHTSA that a yielding seat was preferable to a rigid seat for purposes of occupant protection. 76. Defendants agreed and conspired among themselves to share and coordinate their knowledge, data, research activity, and decisions respecting the design and testing of seatbacks. For example, internal communications in 1992 among members of Ford s internal Seat Back Task Force investigating Ford s yielding front seatbacks refer to the d esirability of using the auto industry s 46 Crash Dummy Consortium, which included all Defendants, to ensure such coordination among Defendants. One such com municatio n noted tha t it would be wor se than silly for Ford s seat Back Task Force to be going in one direction regarding f ront seatbac k design a nd for the a uto industry s indu strywide research p rogram o n this subjec t to be goin g in a conflicting direction with Ford not kno w[ing] it . 77. The purpose and intended effect of Defendants conspiracy and the overt acts in furtherance thereof have been to stabilize, suppress, and lock competition among Defendants in designing, manufacturing, and selling reasonab ly crashworthy front seatbacks for Defendants 1990-1999 cars. Such a conspiracy in restraint of trade is per se illegal under federal an state antitrust laws. As a resu lt of this consp iracy and its exe cution, the Class Vehicles are defectively designed, are unreasonably dangerous and unsafe, and are not reasonab ly crashworthy, and the owners and consumers of such c ars are substantially exposed to serious injury and death in the event of a rear-impact collision . It is clear to this Court that the facts pled in the TAC were not vague assertions, but rather were pointed facts alleging specific acts of conspiracy on the part of the respondents. Therefore, the Court o f Special A ppeals dec ision to affirm the Circuit Court s grant of summary judgment on this ground is reversed. B. Contra ct Claim Implied W arranty of M erchantab ility It is clear that, under the Maryland Uniform Commercial Code, codified at Maryland Code (1975, 20 02 Rep lacement V ol. ) §2-314 of the Commercial La w Article, a warran ty that the goods shall be merchantable is implied in a contract for their sale if the seller is a 47 merchant with re spect to goods of that k ind. 22 With regard to automobiles, the implied warranty of merch antability not only w arrants that the automob ile will operate e ffec tivel y, but that it will provide reason ably safe transpo rtation. Frericks v. General Motors Corp., 274 Md. 288, 301, 336 A.2d 11 8, 126 (19 75) (holdin g that [a] w arranty that an automobile is fit for the ordinary purposes for which such goods a re used log ically includes a p romise that a reasonab le measure of safety has been provided when inevitably, collisions do occur. [internal quotations o mitted]); see also Mercedes-Benz of North America, Inc. v. Garten, 94 Md.App . 547, 562, 618 A .2d 233, 240 (199 2). As the C ourt of Sp ecial App eals stated be low in this ca se: [i]n order to recover for a breach of implied warranty of merchantability, the plaintiff must estab lish that: (1) a warranty existed; (2) the produ ct did not co nform to th e warran ty [and thus the warranty was breached]; and (3) the breach of warranty by the seller was the cause of the injury to the use r or third party. See also Mattos v. Hash, 279 M d. 371, 379 , 368 A.2d 993, 997 (1977); Ford Moto r Co. v . General Accident Ins. Co. et. al, 365 M d. 321, 3 35, 770 A.2d 3 62, 370 (2001 ). 22 Maryland Code (1975, 2002 Replacement Volume) § 2-314 of the Commercial Law A rticle provide s in pertinent p art: (1) Unless excluded or modified ( § 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merch ant with respec t to goo ds of th at kind. . . . (2) G oods to be me rchanta ble mu st be at le ast as su ch as . . . (c) A re fit for the ord inary purp oses fo r which such g oods a re used . . . . 48 The elements n ecessary to asse rt a breach of implie d warran ty claim are simila r to those required for strict liability tort clai ms. See Virgil v. Kash N Karry Service Corp., 61 Md. App. 23, 30, 484 A.2d 652, 566 (1984) (holding that [t]o recover on either theory - implied warranty or strict liability the plaintiff in a products liability case must satisfy three basics from an evidentiary standpoint: (1) the existence of a defect, (2) the attribution of the defect to the seller, and (3) a causal relation between the defect and the injury. ). Each cause of action, however, protects diff erent aspec ts of a cons umer s righ ts. Strict liability seeks to protect personal and property interests, while implied warranty protection seeks to ensure that consumers receive the ben efit of th eir barg ains. See David C. Issacson, Recove ry for Property Loss under Th eories of N egligence a nd Strict Lia bility in Tort, 54 Md. Law. Rev. 860, 862 (1995). The remedy for the bre ach of an implied w arranty, set forth in § 2-714 o f the Commercial Law A rticle, provides: (1) Where the buyer has accepted goods and given notification . . . he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller s breach as determined in any manner which is reasonable. (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstan ces show proximate damage s of a diffe rent amou nt. 49 (3) In a proper case any incidental and consequential damages under . . . may also be recove red. 23 Furthermore, Maryland Code (1975, 2002 Replacement Volume) § 1-106 instructs us that the remedy for breach of warranty causes of action, and, indeed the remedies for all UCC claims shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed . . . . Therefore, in recognition of the primary goal of contract w arranties to ensure that consum ers receive th e benefit of their bargains, the remedy provided by 2-714 allows aggrieved consumers to recover damages in any reasonab le manne r, to the extent that it provides them with the full value of the goods for which they have contracted. The sole basis for the Court of Special Appeals reasoning for dismissal, with regard to the Breach of Implied Warranty claim was that no actual harm or damages ha[d] yet occurr ed. In reaching its decision, an d, without re ference to supporting case law, the intermediate appellate co urt presum ably relied upo n the literal interpretation of the word 23 Under th e Maryland UCC , §§ 2-313 , 2-314 and 2-315, a m erchant w ho sells goods to a consumer potentially makes three warranties: 1) an express warranty, which, as is indicated by its title, becomes part of a bargain only when the seller makes a particular affirmation of fact or promise . . . that the goods shall conform to the affirmation or promise. § 2-313; 2) a n implied w arranty of me rchantability, the w arranty at issue in th is case, and which warrants that goods are fit for the general purposes for which such goods are used. § 2-314; and 3) an implied warranty of fitness for the particular purpose, which warrants that goods will be fit for a particular purpose of a consumer, even when such goods are not usually used for the consumer s intended purpose, so long as the seller at the time of contracting has reason to know [the consumer s] particular purpose for which the goods are required and . . . the buyer [relies] on the seller s skill or judgment to select or furnish suitable goods . . . § 2-315. Section 2-714 is the remedy provision for breach of each of these warranties. 50 inju ry in the third element to require actual bodily harm, damage to property or actual property malfunc tion before a claim for p roducts liability in ec onomic d amages w ill lie.24 That interpretation is incorrect. Although a plaintiff must plead, under a theory of breach of implied warranty, that the seller s breach was the proximate cause of injury, the language does not a nnounc e a rigid definition of injury to include only actual bodily injury or product malfunction. To the contrary, when read in context with the language of the remedy provision which dictates that a buyer may recover damages for an y nonconformity of tender[,] the loss resulting in the ordinary course of even ts from the s eller s breach as determin ed in any ma nner wh ich is reason able, § 2-714 (1), the injury requirement embraces a much more inclusive definition of the damages a buyer may recoup when the seller warrants that goods are fit for the ordinary purpose for which goods of its kind are intended, i.e., in this case, that the goods are fit for reason ably safe operatio n of a m otor ve hicle. 24 There is no question in this case, that the respondents, automobile manufacturers, are merchants in the business of selling automobiles to consumers like the petitioners. There is also no question that the respondents impliedly warranted that the automobiles purchased by the petitioners w ere fit for the ordinary purpose fo r which they were intended, and thus, by extension, that they were reasonably safe. Because, as we have seen, the sole basis for the intermediate appellate court s decision with regard to the breach of warranty claim was that the petitioners failed to articulate any immediate actual injury - it noted that [b]ecause no injury has occurred, appellants are unable to assert that they have suffered damages as a result of any concealment of the alleged defect, - we shall assume that the court im plicitly found that all other elements of the co unt were sufficiently pled. 51 The more appropriate definition of the dama ges that qua lify as a cogniza ble injury in a breach of warranty claim can be gleane d from § 2-714 (2) which provide that the measure of damages for breach is the difference ... between the value of the goods accepted and the value they would have had if they had been as warranted . . . Thus, the injury arises when the seller fails to tende r the good s in a mann er that is fit for ordinary purposes, and the damages are the difference between what the buyer w ould have received if h e or she rec eived the f ull measure of the bargain, which the seller warranted, and what the buyer received in less-thanfit goods . So long as it is reasonable, the buyer may recover that difference to arrive at the full benefit of his bargain - a result that embodies the paramount interest of contract law. The injury contemplated under § 2-314 and § 2-71 4, includes the cost to repair the defect. The Camden Consolidated Oil Co. v. Schlens, 59 Md. 31, 43 Am.Rep. 537 (1882); Byers Sons, Inc. v. East Europe Import Export, Inc., 488 F.Supp. 574, (D. Md. 1980); Nobility Homes of Texas, Inc. v. Shive rs, 557 S.W .2d 77 (19 77); Schroeder v. Barth Inc. 969 F.2d 421 (7 th Cir. 199 2). See also W ILLIAM D. H AWKLAND, H AWKLAND U NIFORM C OMMERC IAL C ODE S ERIES, UCC § 2-71 4. B UYER S D AMAGES FOR B REACH IN R EGARD TO A CCEPTED G OODS (interpreting repair and replacement as provid[ing] evidence to prove the difference between the value of the goods as accepted and the value they would have had if they had met the war ranty and noting that [i]n situatio ns in which the buyer decides not to repair or replace the defective goods, but to use them in their defective condition, . . . damages can be determ ined ba sed on estimate s of w hat it wo uld cos t to repai r or repla ce. ). 52 Camden, a case decided long before the adoption of the Uniform Commercial Code, first enunciated the view that an injury, in the form of economic loss, in contract claims, includes the cost to repair or replace a defective product notwithstanding the fact that the buyer has no t suffer ed actu al injury. Camden, 59 Md . at 43-46. In th at case, the res ponden t, vendee, Sch lens Com pany, contracted with the petitioner, vendor, Camden Consolid ated Oil Com pany, to purc hase oi l, the qua lity of wh ich wa s to be color sta ndard w hite, or b etter, id. at 32, and was to burn at a test of 110 degrees [f]ahrenheit or upwards. Id. When th e oil reached its destination in Europe, however, the first two of the three shipments of oil tested to less than 110 degrees Fa hrenheit and, thus, could no t be sold. The third and final shipment could not be sold because the inferiority of [the] brand in the two previous cargos had given it a bad name. Id. at 33. The respondent brought suit in assumpsit alleging that the petitioner oil com pany faile d to me et the req uireme nts of th e contra ct. The Court held that the respondent vendee was entit led to reco up dama ges f or injury that arose when the petitioner-vendor failed to meet the spe cificatio ns of th e contra ct. Id. at 45. Calcu lating dam ages, it applied the general rule . . . that the measure of damages is the 53 difference betwe en the c ontract p rice and the ma rket pric e at the tim e and p lace of delivery. 25 Id. The Co urt explaine d: The application o f this rule ord inarily secures to the injured p arty indemnity or compensation for the loss arising from the breach of the contrac t, which is the true principle upon which damages are estimated in civil suits; and the reason for the rule is that it is ordinarily in the power of the vende e to go into the ma rket and purcha se goo ds of th e same quality at th e mark et price. Id. at 44. The U.S. Court of Appeals for the Fourth Circuit more recently reiterated the rule that consumers are entitled to recoup economic losses resulting from a breach of warranty in Geo. Byers Sons, Inc. v. East Europe Import Export, Inc., 488 F. Supp. 574 (4th Cir. 1980). In that case, the petitioner, a motorcycle distributor, sue d the respo ndent, an E ast Germ an motorc ycle importer, on various theories of contract and tort, when the latter failed to deliver 988 contracted-for motorcycles w ith a certificates of co mpliance . These c ertificates w ere to verify that the motorcycles were in co mpliance with federal safety standards as required by a provision of the Traffic and Motor Vehicle Safety Act, then codified at 15 U.S.C. § 1397 (a) and (b) (3). Id. at 579-80. The respondent failed to provide the certificates even though it 26 The general rule is enumerated in Hadley v. B axendale , 9 Ex. 341, 156 Eng. Rep. 145 (1854): the damages for a breach of contract should be such as may fairly and reasonab ly be considered, either as arising natu rally, i.e. according to the usual course of things from such breach of the contract itself; or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the co ntract, as the pr obable result of the breach of it. The court also awarded consequential and incidental damages incurred as a result of the breach of contract. Noting that the oil contracted for was to be shipped abroad, the court determined that the petitioners were entitled to receive recompense for all of the necessary and prop er charges they incurred in storing and re placing the defec tive oil as well as interest o n the tota l amou nt. Camden at 45. 54 had warranted that the motorcycles would be delivered in compliance with all federal and state laws, statutes and regulations, id. at 579, and despite the petitioner s repeated requests for the delivery of the certificates over a period of three years. Eventually, the petitioner was compelle d to seek alternative means for meeting federal compliance by having each of the motorcycles tested and approved by the N ational H ighwa y Traffic Safety A dminis tration. Id. The petitioner arg ued, befo re the Un ited States D istrict Court fo r Maryland , that the responde nts breached express and implied warranties that the motorcycles would be fit for sale in the U nited States a nd the D istrict Court ag reed, holdin g that at all times[, it was] clear that Byers purchased the motorcycles from East Europe for the purpose of reselling them to dealers within its area of distribution. Under 15 U.S.C. §§ 1397 (a) (3) and 1398 (a), however, resale of the motorcycles would ha ve subjected Byers to a civil penalty of up to $1000 for each sale. On these facts, it is evident that the goo ds were n ot mercha ntable as to Bye rs, and th at recov ery for br each o f implie d warr anty is pro per. Id. at 580. Other jurisdictions have reached a similar result, and have consistently interpreted econom ic losses as measurable damages for violations of the implied warranty of merchan tabil ity. For example, the Supreme Court of Texas held that a plaintiff, who purchased a mobile home that turned out to have significant defects, suffered economic loss in the form of lost value in the mobile home, and was entitled to the difference between the market value of th e mobile h ome con structed in a manner fit for ordinary use, and the market value of the h ome w ith the de fects. Nobility Homes, supra, 557 S.W.2d at 78. The court recognize d that 55 [t]he distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the luck of one plaintiff in having an acci dent cau sing physi cal in jury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products. Id. at 79. The court further recognized that [t]he fact that a product injures a consumer econom ically and not physically should not bar the consumer s recovery, id. at 81, and implied warranty remedies apply to economic injuries ...,[which is] consistent with the w ell developed notion that the law of contract should control actions for purely economic losses and that the law of tort should control actions for personal injuries. 26 Id. at 82 (internal citation o mitted). The United S tates Court o f Appe als for the 7th Circuit relied, in particular, on the cost of repairs as the measure of the underlying injury in Schroeder v. Barth, Inc., supra, 969 F.2d 421. In that case, the petitioners, pu rchasers of a motor ho me that ha d sixty-one separate problems, argued that they should receive not only the amount of direct damages, quantified by the cost to repair the mobile home defects, but the total cost of the motor home plus consequential and incidental damages, court costs and attorneys fees. Id. at 422. In support of their warranty claims, one of the petitioners submitted an affidavit, in which he averred that 26 The court also enunciated the general rule that tort claims generally should not be recognize d as provid ing a reme dy for econo mic losses. T hat genera l rule was p articularly true in that case because there w as no allegation that the defec tive mobile homes w ere constructed in a way that p osed a sign ificant risk of bodily harm. T he court ap parently contemplated the fact that there might potentially be a viable claim for economic losses under a tort theory if such a risk of harm existed when it noted that [t]here is no finding in this case that the product was unreasonably dangerous to [the petitioner] . . . Id. at 80. 56 the motor h ome w as wo rthless to him. Id. The petitioners also submitted the expert testimony of a health care provider, who estimated that the motor home s market value was diminished by virtue o f the m ultiple d efects. Id. In respons e, the respon dents argued that the witness was not q ualif ied to give expert te stimony regarding the market value of the motor home and filed a motion fo r summary judgmen t requesting th e court to lim it the petitioners damages to the amount they paid to repa ir the motor home defec t, which the district court granted . Id. at 422-23. On appeal, the 7 th Circuit C ourt of A ppeals aff irmed, find ing that the petitioners nebulous claims that the motor home was worthless and the ten uous testim ony of their expert witness were insufficient to meet their burden of proving a material issue as to the proper measu re of da mage s. Id. at 424. Th e court agre ed that the m ethod for a ffixing damages in that case was most appropriately the quantifiable amount it cost to repair the vehicle . Id. at 425. These cases buttress our determination that petitioners are not required to plead that they have suf fered a ph ysical bodily injury in ord er to prove a breach of warranty. Nor must a plaintiff pro ve that the p roduct actu ally malfunctio ned. To th e contrary, a plain tiff need o nly plead that the autom obiles we re sold with a def ect and that th e defect ren dered the g oods unf it for ordina ry and saf e use. In other w ords, the injury arise s, ipso facto, from the breach, creating a gap of sorts between what the consumer bargained for and what the consumer 57 actually received. Only by receiving recompe nse to fill the g ap will the consumer be restored to the position where he or she has the full benefit of his or her bargain - and be made whole. It is quite true that, in Byers, Schroeder and Nobility Homes, the produc ts had actua lly malfunctioned.27 It is also true that the seatbacks in the automobiles owned by the petitioner class have not malfunctioned as of the trial court s dismissal and apparently were being driven, albeit with a significant threat of bodily injury or death. Unlike general tort claims, however, the measu re of injury in bre ach of co ntract claims is not bodily harm, nor is a consumer required to wait for a malfunction to occur as a result of a product defect in order to assert an articu lable injury. The paramou nt issue, rather, in breach of warranty claim s, is whether the goods sold by a merchant are fit for their particular purpose, and in the case of automobiles, if they are safe for driving under reasonab le circumstances. The injury becomes the loss the petitioner experienced as a result of th e respond ents non conform ity of tend er. See Comm ercial Law § 2-714. T he objectiv e determin ation of the cost of that injury will always, at the very least, be the measure of difference betwe en value of the goods if the petitioner had received them as warranted and the value of the goods as received with the defec t. The only thing that will change, from case to case, will be the tool used to measures the damages. In this case, the tool the petitioners have cho sen is the ob jective cost to re pair 27 In Byers, to sell the moto rcycles, as delivere d, without th e certification s would have exposed the petitioner to liability for violating federal law. The lack of certifications might as well have been faulty brakes or a cracked steering column in that their absence rendered the bikes useless. Similarly, in Schroeder and Nobility Homes, the mobile homes actually malfunctioned - spurring the consumers in that case to make repairs. 58 the seatbacks. That certainly comports with § 2-714's requirement that the measure of damages be determined in any manner which is reasonable. In fact, on previo us occa sions, this Court has announ ced a pref erence fo r contractbased warranty claims when the only injury alleged is economic loss. A. J. Decoster Co. v. Westinghouse Electric Corp., 333 Md. 245, 251, 634 A.2d 1330, 1332 (1994) (holding that gen erall y, the only recovery for a purely economic loss would be under a contract theory. ); Morris v. Osmose Wood Preserving, supra, 340 Md. at 531-32, 667 A.2d at 631 (holding that econom ic losses are often the result of some breach of contract and ordinarily should be recovered in contract actions, including actions based on breach of implied or express warra nties. ). As we have stated, economic loss includes loss of value or use of the defective product, the absorption or future absorption of the cost to repair a defective product, or the loss of profits resulting from th e loss of use of the pro duct. Gypsum, 336 Md. at 156, 647 A.2d at 410 (1994). Decoster, 333 Md. at 249-50, 634 A.2d at 1332. In this case, the only hurdle the petitioners must surmount is whether the cost to repair the d efective setb acks is a cog nizable econom ic loss. So long as all of the other elements have been pled sufficiently, actual present injury is not required to assert a claim for breach of implied warranty; economic loss, the cost to remedy the defect, is an injury. The respondent points us to a gaggle of other cases in which courts have held that, absent actual injury, harm to property, or product malfunction, a plaintiff can not recover for 59 econom ic losses under the legal theories claimed in the case sub judice. See e.g. Williamson v. Indianapolis Life Ins. Co., 741 So.2d 1057, 1061 (Ala. 1999) (holding tha t, notwithstanding the defendant life insurance company s assurances that the plaintiff would not have to make premium paymen ts after 1 0 years, the fact tha t the plain tiff wo uld, at so me fu ture date , likely have to pay premiums beyond that time period, was not enoug h to constitute damage s to state a claim for f raud); Yu v. IBM, 732 N.E. 2d 1 173, 1177 (Ill. App. C t. 2000) (holding that mere speculation that software the defenda nt sold the plaintiff might not work after December 31, 1999, did not amount to an injury for the purposes of plaintiff class consumer fraud, deceptive trade practices and negligenc e claims); Eddings v. Bo ard of Educ., 712 N.E. 2d 902, 908 (Ill. App. C t. 1999) (ho lding that the p laintiff, who was term inated from his position at a school, had not sufficiently pled damages, in the form of lost interest on his tax-sheltered annuities when he failed to establish that he had m ade contrib utions to the f und); Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 197 (Ky. 1994) (holding that plaintiff s allegation of actual injury in the form of increase[d ] risk of future injury or disease and sev ere emotional distress from the fear of d eveloping cancer a s a result of exposure to asbestos while working in the def endant s building was too speculative to allege an actionable present injury on a theory of negligenc e.); Lavelle v. Owens-Corning Fiberglas Corp., 507 N.E.2d 476, 479 (Ohio Ct. Com. Pl. 1987) (declining to permit plaintiff s recovery for emotional suffering as a result of his fear that his asbestosis would eventually cause him to become afflicted with canc er when cancer w as not a resu lt of asbestosis and plaintiff could not prove 60 that it was more likely than not that he wo uld contrac t cancer); Briehl v. General M otors Corp., 172 F.3d 623, 627-29 (8th Cir. 1999) (holding that plaintiffs, alleging damages in the form of the lost retail value and overpayment for their vehicles, which contained ABS brake systems that caused drivers to overreact to the mechanism in a dangerous manner, did not adequate ly plead an actionable injury when brakes in the class vehicles had not malfunctioned and where p laintiffs had not sufficie ntly alleged a m anifest def ect); Carlson v. General M otors Corp., 883 F.2d 287, 297 (4th Cir. 1989) (declining to extend recovery under the UCC implied warranty of merch antability to plaintiff who c laimed their G .M. vehicles contained a defect that cause frequent break downs and repairs when those vehicles have served the traditionally recognized purpose for which automobiles are used, and that the implied warranty of merch antability is simply a guar antee that the y will operate in a safe condition and substantially free of defects (quoting Overland Bo nd & Investm ent Corp. v. How ard, 9 Ill. App. 3d 348, 352, 353, 292 N.E.2d 168, 17 2-73 (1 st Dist. 1972 )); Spuhl v. Shiley, Inc. 795 S.W.2d 5 73, 580 (M o. Ed. 199 0) (holding that plaintiff s allegatio n that the pro sthetic heart valves he received from the defendant caused him injury was insufficient to withstand dismissal of his strict liability products defect claim when he did not allege that the heart valves actually m alfunc tioned) . These cases are distinguishable from the case at bar. In the majority of these cases , the courts held that the injury alleged by the plaintiffs was merely speculative. In other words, the alleged injury, in those cases, constituted nothing mo re than potential injury in the future or 61 a purely speculative fear of such injury. In none of the cases cited by the respondents was there an indication or discussion of whether the plaintiffs sub mitted any ob jective facts that a significant number of others had been injured or harmed as a result of the product d efect. Indeed, without objective evidence of the likelihood of injuries, as measured by empirical or anecdotal evidence of actual injuries resulting from the defective seatbacks in this case, we would likely determine that the petitioners had not articulated a sufficient injury to withstand dismissal of their claims. The respondent also points to a significant amount of case law from other jurisdictions that have fou nd, in autom obile produ ct defects cases, that an allegation of econo mic loss is not sufficient to articulate an injury for the claims asserted by the petitioner in this case. Most nota bly, the responde nts refer us to fo ur cases fro m differe nt jurisdictions in cluding: Frank v. Daimler-Chrysler Corp., 741 N.Y .S.2d 9 (N .Y. App . Div. 2002 ); Weaver v. Chrysler Corp., 172 F.R.D. 96 (S.D.N.Y . 1997); American Suzuki Motor Corp. v. Superior Court, 44 Cal Rptr. 2d 526 (Cal. Ct. App. 1995); and Ford Motor Co. v. Rice, 726 So.2d 626 (Ala. 1998). In Frank, a case similar to the one at bar, the plaintiffs alleged that the seatbacks in the class vehicles were defective and brought suit against car manufacturers, including counts sounding in negligence, strict liability, breach of implied warranty of merchantability, negligent concealment and misre presentation , fraud and unfair or deceptive trade practices. The court held that because plaintiffs have not been involved in any accidents and have not suffered any personal injuries or property damages . . . [and because] plaintiffs do not allege 62 that any seat has failed, been retrofitted or repaired, nor have plaintiffs attempted to sell or sold an automobile at a financial loss because of the alleged defect[, w]e fin d, therefore, that the motion court properly dismissed [the plaintiffs ] causes of action as a result of [their] failure to plead any actual injury. 28 Frank, at 17. Similarly, in Rice, the plaintiffs in a class action suit alleged that their vehicles contained a defect that increased their prop ensity to roll over and thus, they were entitled to recover economic losses quantified by the lost value of, and cost to repair their vehicles. The Supreme Court of Alabama held that the plaintiffs could not recover solely on the theory that their vehicles co uld malfu nction in the future, given the lack of any claims indicating manifest injury. Ford Motor Co. v. Rice,726 So.2d at 628. Similarly, in American Suzuki, in which the plain tiffs clai med, inter alia, that the defendant car manufacturer breached the implied w arranty of me rchantability wh en it sold them vehicles that had a tendency to roll over, the California Court of Appeals for the Second District, Division 2, held that, because the plaintiffs had not been injured or suffered any property damage, and because evidence proved that the vast majority of vehicles so ld during the class period have, since the date of purchase, provided basic transportation without manifesting the alleged rollover defect, 44 Cal. Rptr. 2d at 528. the plaintiffs could not recove r the cos t to repai r the def ective v ehicles. Id. 28 The court in Frank, also dismisse d the plaintiff s seventh c ount of civ il conspiracy because the plaintiffs had failed to allege any underlying tortious cause of action and no independent cause of action exists for such a claim. Id. at 17. 63 In Weaver, the plaintiffs, owners of vehicles with an allegedly defective integrated child safety seat, filed suit against the car manufacturer, Chrysler Corp. for fraud, negligent misrepresentation, violation of New York s Consumer Prot ectio n Ac t and brea ch of wa rran ty. Weaver, 172 F.R.D. at 98. The United States District Court for the Southern District of New York held that t he plaint iffs could no t reco ver o n any of their claims bec ause they failed to sufficiently plead damages. Id. at 99. The Court elucidated [i]t is well established that [p]urchasers of an allegedly defective product have no legally recognizable claim where the alleged defect has not manifested itself in the product they own. Id., (quoting Hubbard v. General Motors Corp., 1996 W L 274 018 at 3 (S.D.N .Y. M ay 22, 19 96). These cases, however, differ from the matter sub judice, in a s ignifica nt way, in that the parties did not argue, and the court never addressed whether the harm alleged, in those cases, was sufficiently grave, or whether the likelihood of injury so great, to reach the thresho ld of the econo mic loss excep tion. As we stated above, Maryland has joined those jurisdictions that recognize an exception to the rule which bars economic loss in tort. As we have seen, the reasoning behind the exception is that the likelihood is so great that severe bodily harm or death will result from the product defect, that we substitute actual present injury or product malfunction with the cost to repair the problem. Assuming that plaintiffs can adequately prove the substantive elements of their claims and objectively quan tify the measure of their damages, Maryland has determined that the exception to the economic loss rule advances the practical goal of 64 providing a rem edy before the significa nt loss of life o r limb. To b e sure, in light of the general distaste for aw arding eco nomic loss es in tort, if a petitioner has presented enough facts to qualify for the exception to the rule, then he or she has surmoun ted the grea test hurdle for pleading injury and this court cannot fathom why such economic losses would not qualify as a sufficient injury, or in the case of the Consumer Protection Act, loss for the purpose of pleading those claims. Acc ordingly, this Court finds that the petitioner sufficiently pled the existence of a cognizab le injury to withstand dismissal for failure to state a claim for each of its substantive counts, and we, therefore, reverse the dismissal of the petitioners claims. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JU DGM ENT O F THE C IRCUIT COURT FOR MONTGOMERY COUNTY AND REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS CON SISTENT WITH THIS OPIN ION. COSTS IN TH IS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENTS. 65 IN THE COURT OF APPEALS OF MARYLAND No. 10 September Term, 2002 TIMO THY AND BERN ADE TTE L LOY D, et al. v. GEN ERA L MO TOR S COR PORA TION , et al. Bell, C.J. *Eldridge Raker *Wilner Cathell Harrell Battaglia, JJ. Concurring Opinion by Eldridge, J. Filed: February 8, 2007 *Eldridge and Wilner, JJ., now retired, participated in the hearing and conf erence of this case w hile active membe rs of this Co urt; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Eldridge, J., concurring: I join both the judgment of the Court and the Court s opinion. I note, however, that I continue to adhere to the dissenting opinions in Morris v. Osmose, 340 Md. 519, 547-555, 667 A.2d 624, 63 8-642 (19 95) (Eldrid ge, J., joined by B ell and Ra ker, JJ., dissentin g), and Citaram anis v. Hallow ell, 328 M d. 142, 1 65-18 1, 613 A .2d 964 , 975-9 83 (19 92) (B ell, J., joined by Eldridge, J., dissenting).
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