Turnbull v. Northside Hosp., Inc.

• Decision Date: 13 March 1996
• Docket Number: No. A95A2425,A95A2425
• Citation: 470 S.E.2d 464,220 Ga.App. 883
• Parties: TURNBULL v. NORTHSIDE HOSPITAL, INC.
• Court: Georgia Court of Appeals

Page 464

470 S.E.2d 464

220 Ga.App. 883

TURNBULL v. NORTHSIDE HOSPITAL, INC.

No. A95A2425.

Court of Appeals of Georgia.

March 13, 1996.

Reconsideration Denied March 28, 1996.

Certiorari Denied May 31, 1996.

Weinstock & Scavo, Michael Weinstock, and Louis R. Cohan, Atlanta, for appellant.

Bondurant, Mixon & Elmore, Jane E. Fahey, and Michael B. Terry, Atlanta, for appellee.

POPE, Presiding Judge.

Plaintiff Emily Turnbull brought suit against defendant Northside Hospital, Inc. for fraud and intentional infliction of emotional distress. Defendant moved for summary judgment on both claims. The trial court granted defendant's motion, and plaintiff appeals. Concluding that the trial court did not err, we affirm.

Construed most favorably to plaintiff, the record shows that plaintiff worked as a legal secretary for attorneys Regina Jenkins and Catherine Butler in defendant's legal department. When Jenkins went on maternity leave, Butler started an internal investigation regarding alleged misconduct on Jenkins' part. On August 11, 1993, defendant's vice president of human resources, Heather Fritzler, contacted plaintiff and requested that she cooperate in the investigation. In return for this cooperation, plaintiff contends that defendant promised that plaintiff's identity would be kept permanently confidential. On August 18, 1993, before the investigation was completed, however, Fritzler advised plaintiff that her name would be disclosed when Jenkins was confronted. Nevertheless, plaintiff continued to cooperate in the investigation. The record shows that when defendant confronted Jenkins, plaintiff's identity was in fact disclosed to Jenkins. Plaintiff argues that defendant perpetrated a fraud against her in making and then failing to keep its promise of confidentiality.

Following the investigation, Jenkins returned to the legal department, and for a short period, plaintiff continued to work as Jenkins' secretary. During this time, plaintiff claims that she was subjected to extreme and outrageous conduct by Jenkins, and that she suffered severe emotional distress as a result. Defendant later transferred plaintiff to another job with equal benefits and pay.

1. Plaintiff contends that the trial court erred in granting summary judgment to defendant on her fraud claim. We disagree. "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. (Cit.) 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. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989)." (Punctuation omitted.) Cobb County School Dist. v. MAT Factory, 215 Ga.App. 697, 700-701(2)(a), 452 S.E.2d 140 (1994).

In this case, before the investigation was completed, Fritzler specifically told plaintiff that her identity would not be kept confidential permanently. Yet after being made aware that no permanent offer of confidentiality existed, the record demonstrates that plaintiff continued to actively participate in the investigation. Specifically, she gathered and provided additional documents for the investigation; prepared statements; and even drafted an affidavit for her own signature, in which she expressed a bitter resentment toward Jenkins. Moreover, we note that plaintiff was required from the beginning to participate in the investigation as set forth in her employee handbook. Under such circumstances, we hold that plaintiff cannot demonstrate that she justifiably relied on defendant's alleged promise of permanent confidentiality in cooperating in the investigation. Inasmuch as the element of justifiable reliance is missing in this case, defendant was entitled to judgment in its favor on the fraud claim as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

2. We also reject plaintiff's contention that the trial court erred in granting summary judgment to defendant on her claim of intentional infliction of emotional distress. Although the law in this area is still developing and its ultimate limits have not yet been determined, the cases thus far decided have found liability for intentional infliction of emotional harm only when a defendant's conduct has been extreme and outrageous. Moses v. Prudential Ins. Co., 187 Ga.App. 222, 224, 369 S.E.2d 541 (1988); see Kornegay v. Mundy, 190 Ga.App. 433(1), 434, 379 S.E.2d 14 (1989). Such conduct must be "so extreme in degree, as to go beyond...