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WHALEN v. ISAACS

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Court of Appeals of Georgia.

WHALEN v. ISAACS.

No. A98A0207.

Decided: June 23, 1998

Nicholas G. Dumich, Atlanta, for appellant. Chambers, Mabry, McClelland & Brooks, Ian R. Rapaport, Atlanta, for appellee.

Plaintiff Whalen filed this action for damages arising from intentional infliction of emotional distress against defendant Isaacs.   The complaint alleges that plaintiff returned from an out-of-town trip to discover a message on his home telephone answering machine which stated that his dog had been found roaming free and been given a poisonous chemical, and that unless medical treatment was administered immediately, the dog would die within 24 hours;  that plaintiff transported the dog to a veterinarian for diagnosis and treatment;  and that at the veterinarian's it was eventually determined that in all probability a poison had not been administered to the dog.

Defendant explained that he had made the telephone call after being approached in front of his house by a man on a bicycle who informed him that he had given the dog a poisonous chemical.   Defendant deposed that his intent in telephoning plaintiff was to save the life of the dog, and that he did not know the bicyclist, who rode away after lecturing him on the responsibilities of taking care of the dog.

Plaintiff presented evidence of conduct on the part of defendant both preceding and subsequent to the incident in question which amounted to displays of hostility towards the dog being permitted to escape and run free onto defendant's property.   There was also evidence that defendant had not identified himself when he left the message for plaintiff.

The parties filed opposing motions for summary judgment.   Defendant's motion for summary judgment was granted and plaintiff appeals.   Held:

 1. According to defendant's deposition testimony, when he was approached by the unknown bicyclist, his friend Friedman was present.   Defendant filed an affidavit from Friedman which briefly corroborated portions of his deposition testimony concerning the existence of and the statements of the bicyclist.   Plaintiff's motion to strike the affidavit of Friedman as untimely filed was denied.   Plaintiff's first enumeration of error maintains that the state court erred in considering Friedman's affidavit.   However, any such error was harmless since Friedman only corroborated the properly considered evidence contained in defendant's deposition and added nothing.   Upon review of a grant of summary judgment, we are not concerned with the weight of the evidence since this issue is reserved for a trier of fact.  Washington v. Georgia Baptist Medical Center, 223 Ga.App. 762, 767(3), 478 S.E.2d 892 (rev'd in part on other grounds, Porquez v. Washington, 268 Ga. 649, 652(3), 492 S.E.2d 665).   See also Jones v. Rodzewicz, 165 Ga.App. 635, 637(4), 638, 302 S.E.2d 402.

 2. “Four elements must be present to support a claim of intentional infliction of emotional distress:  ‘(1)(t)he conduct must be intentional or reckless;  (2)(t)he conduct must be extreme and outrageous;  (3)(t)here must be a causal connection between the wrongful conduct and the (plaintiff's) emotional distress;  (and)(4)(t)he emotional distress must be severe.’  (Citations and punctuation omitted.)  Clark v. Arras, 212 Ga.App. 695, 696(2), 443 S.E.2d 277 (1994).  ‘Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.’  Yarbray v. Southern Bell Tel., etc., Co., 261 Ga. 703, 706(2), 409 S.E.2d 835 (1991).”  Fisher v. Toombs County Nursing Home, 223 Ga.App. 842, 846(3), 847(3), 479 S.E.2d 180.

 The crux of plaintiff's claim rests upon the supposition that the initial message left by defendant was a hoax rather than an act of a good Samaritan intended to aid the dog.   However, plaintiff provides no probative evidence in support of his supposition.   The circumstantial evidence upon which plaintiff relies is entirely consistent with defendant's explanation that he was merely relating the statements of the unidentified bicyclist.   “ ‘(C)ircumstantial evidence has no probative value in establishing a fact when such evidence is consistent with direct and unimpeached evidence showing the non-existence of such a fact.’  (Citation and punctuation omitted.)  Red Top Cab Co. v. Hyder, 130 Ga.App. 870, 871, 204 S.E.2d 814 (1974).”  Carter v. Spells, 229 Ga.App. 441, 443, 494 S.E.2d 279.   See also Lane v. Spragg, 224 Ga.App. 606, 607-8, 481 S.E.2d 592;  MARTA v. Mehretab, 224 Ga.App. 263, 265-266(1), 480 S.E.2d 310;  Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga.App. 890, 892(1), 473 S.E.2d 213.

Defendant, being able to demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of plaintiff's case, was entitled to the grant of summary judgment.  Lau's Corp. v. Haskins, 261 Ga. 491, 495(4), 405 S.E.2d 474.   This is true without any consideration of the Friedman affidavit discussed in Division 1 of this opinion.

Judgment affirmed.

McMURRAY, Presiding Judge.

BLACKBURN and ELDRIDGE, JJ., concur.

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