Swims v. Chapple

HOUSTON, Justice

(concurring specially).

The statement (which differs slightly in different places in the record) that the property “was not supposed to flood again,” that the property “wasn’t supposed to flood again,” or that the property “shouldn’t ever flood again” is a statement of an opinion as to what is likely to occur in the future. I question whether this statement is a false representation concerning a material, existing fact (Lawson v. Cagle, 504 So.2d 226 (Ala.1987); Jones v. McGuffin, 454 So.2d 509 (Ala.1984); Harrell v. Dodson, 398 So.2d 272 (Ala.1981)) and therefore whether it would ever constitute actionable fraud.

However, the plaintiffs do not base their fraud claim on this expression of an opinion, but on the statement of a past, existing fact — that TVA had done drainage work on Flint Creek. Therefore, I think that it is for the trier of fact to determine whether the defendant made that statement and, if so, whether the plaintiffs justifiably relied on it to their detriment. ■