78. Noah and Judas are neighbors, who frequently do each other favors. One night, Judas is visiting Noah, and, as he leaves, Noah says: “I’ll come out with you as far as the barn. It looks like rain, and I want to make sure the unicorns are securely shut in the barn.” Judas says,

“Forget it. I’ll check on my way home.” Judas has no intention of checking, figuring Noah’s just being a worrywart. In fact, the unicorns are not securely penned, and they run away and drown in the subsequent flood. Had they been penned, they would have survived. Noah sues Judas for misrepresentation. Judas claims he didn’t misrepresent a past or present fact, so the claim will not lie. Who’s correct?

_________________