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Johnson v. Rodier2/10/2000
Rodier's motion to dismiss the breach of privacy and tortious interference with employment claims. See Labovitz, supra.
2. Johnson contends that the trial court erred in granting summary judgment to Rodier on the fraud count. The fraud arose, Johnson contends, when Rodier concealed from Johnson the state of Johnson's mental condition, and concealed from him that Rodier "was not the appropriate physician to treat a severe mental condition and by failing to refer Plaintiff to a psychiatrist or a psychologist." Johnson contends that he relied on Rodier's reassurances of good health, and that Rodier's concealment of his diagnosis resulted in Johnson being fired. Rodier denied these allegations in his answer.
"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citations omitted.) Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).
Concealment of a material fact with the intention to deceive and mislead supports an action for fraud. OCGA § 51-6-2 (a). And when a confidential relationship exists, as between a patient and physician, "a person's silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation." (Citations omitted.) Cleveland v. Albany Urology Clinic, 235 Ga. App. 838, 840 (1) (509 SE2d 664) (1998); cert. granted, S99G0600.
The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. Because summary judgment is appropriate if only one essential element of [Johnson's] claim is eliminated, we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this appeal. (Citations and punctuation omitted.) Fuller v. Perry, 223 Ga. App. 129, 131 (1) (476 SE2d 793) (1996).
In his motion for summary judgment, Rodier argued that the record contains no evidence from which a jury could find each element of fraud. The first element of fraud is that the defendant made a false representation, and once Rodier pointed to the absence of evidence to support this element of Johnson's fraud claim, Johnson had to come forward "with specific evidence giving rise to a triable issue." Lau's Corp., Inc. v. Haskins, supra, 261 Ga. at 491. He did not do so, and in fact presented no evidence at all in response to Rodier's motion for summary judgment. Therefore, the trial court did not err in granting summary judgment to Rodier on Johnson's fraud claim.
Judgment reversed in part and affirmed in part. Blackburn, P. J., and Eldridge, J, concur.
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