Barger v. Garden Way, Inc.

• Decision Date: 13 March 1998
• Docket Number: No. A97A2329., No. A97A2328
• Citation: 231 Ga. App. 723,499 S.E.2d 737
• Parties: BARGER v. GARDEN WAY, INC. GARDEN WAY, INC. v. BARGER.
• Court: Georgia Court of Appeals

499 S.E.2d 737

231 Ga. App. 723

BARGER v. GARDEN WAY, INC.

GARDEN WAY, INC. v. BARGER.

Nos. A97A2328, A97A2329.

Court of Appeals of Georgia.

March 13, 1998.

Reconsideration Denied March 31, 1998.

Phears & Moldovan, H. Waynes Phears, Richard E. Harris, Norcross, for appellant.

Drew, Eckl & Farnham, W. Wray Eckl, Peter H. Schmidt II, Atlanta, for appellee. McMURRAY, Presiding Judge.

Plaintiff John H. Barger brought this product liability action against defendant Garden Way, Inc. ("Garden Way") d/b/a Troy-Bilt Manufacturing Company, seeking to recover for personal injuries sustained when his hand was allegedly sucked into the discharge chute while the chipper/shredder was running, as plaintiff bent over to brush away a stray or loose bit of vine extending from the discharge chute.

Plaintiff purchased a Troy-Bilt Tomahawk chipper/shredder for personal use in his garden. On April 3, 1992, plaintiff "read his owner/operator manual, in preparation for use of the chipper/shredder.... In addition to his careful review of the ... manual, [plaintiff] prepared ... by sharpening [the] blade, by obtaining an additional discharge screen, by installing a new belt, and by wearing protective eyewear.... The owner/operator manual specifies that wet, soggy, or green materials may be shredded in the chipper/shredder." The manual directs the operator to "remove the discharge screen from the chipper/shredder before shredding wet or green materials such as wet, matted leaves, gone-by vegetables, green vegetation like squash vines, etc."

On April 4, 1992, plaintiff had wet or green garden materials to shred. He "removed the discharge screen from the chipper/shredder before feeding the wet or green materials into the chipper/shredder, in accordance with the instructions of the ... manual.... [ D]espite following all of the safety instructions..., [plaintiff's] hand was pulled into the discharge chute of the chipper/shredder when he attempted to remove a vine from outside the discharge chute." Plaintiff sustained "serious permanent injury to his hand and arm, including dismemberment and permanent loss of use of what remained of his hand."

The theories of recovery included strict liability for defective design, strict liability for failure to warn, negligent design, and negligent failure to warn. The complaint further demanded punitive damages, as well as the expenses of litigation for Garden Way's alleged stubborn litigiousness. The case was tried to a jury which returned a verdict for defendant on all theories of liability. This appeal followed. Held:

Case No. A97A2328

1. Before trial, plaintiff moved to require defendant to produce "statements in Garden Way's possession by other persons injured by the product at issue in this case; and [further, to] allow disclosure of relevant information by persons otherwise prohibited from making disclosures [allegedly] due to the existence of confidentiality orders or agreements." Garden Way opposed such disclosure of testimony by witnesses who had entered into confidentiality agreements, on the ground that the trial court "cannot order Garden Way to give up its legal rights [as] bargained for and memorialized in Confidential Settlement Orders/Agreements entered in[to] in other cases. To the extent Plaintiff seeks the deposition of any `other persons' who have executed Confidential Settlement Orders/Agreements with Garden Way, Garden Way will not voluntarily waive any of its rights under any such Orders/Agreements." We are not shown the location, in a record of over 3,670 pages and a transcript of over 3,500 pages, of the precise language of the Confidential Settlement Orders/Agreements as relied on by defendants to preclude discovery of witnesses with relevant knowledge of allegedly similar accidents or injuries.

The trial court denied the motion, concluding it had no authority "which would allow th[e] Court to require Defendant to consent to a breach of confidentiality agreements or the confidentiality orders of other courts." The denial of this motion, in the nature of a motion to compel discovery, is plaintiff's first enumeration of error.

(a) OCGA § 13-3-45 provides: "If the consideration [for a contract] is good in part and void in part, the promise will or will not be sustained, depending upon whether it is entire or severable. If the consideration is illegal in whole or in part, the whole promise fails." "`An illegal consideration consists of any act or forbearance, or a promise to act or forbear, which is contrary to law or public policy.' ` It is a general rule that agreements against public policy are illegal and void.'" (Citations omitted.) Hanley v. Savannah Bank, etc., Co., 208 Ga. 585, 586, 68 S.E.2d 581. Moreover, "[i]f the consideration upon which a contract is based was given as a result of a mutual mistake of fact or of law, the contract cannot be enforced." OCGA § 13-5-4.

(b) The public policy of Georgia applicable to this case is stated generally in OCGA § 24-1-2: "The object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence." More specifically, the applicable public policy of Georgia is established by OCGA § 9-11-26(b)(1): "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." See, e.g., Dynin v. Hall, 207 Ga.App. 337, 338(1), 428 S.E.2d 89.

(c) In a document memorializing an oral settlement agreement, a "provision that the agreement would be confidential unless disclosed as required by subpoena, [court] order, or law ..." was found to be valid consideration entitling the parties to enforce that agreement. Mitchell v. Lucas, 210 Ga. App. 821, 822, 437 S.E.2d 792. Like the trial court, we are not aware of any binding precedent holding that a confidential settlement agreement without such a provision is illegal as against public policy. But we agree with the U.S. District Court for the Southern District of Georgia that a court order purporting to prohibit a witness from testifying in response to a subpoena, subsequent court order, or notice of deposition does violate the public policy of Georgia. See Williams v. Gen. Motors Corp., 147 F.R.D. 270, 272[3-5] (S.D.Ga.1993) ("Michigan [court] order [incorporating settlement], by facially prohibiting [expert witness] from testifying as to matters outside the scope of any privilege [recognized in Georgia], violates Georgia public policy [and therefore] the Full Faith and Credit Clause does not require [the U.S. District Court for the Southern District of Georgia] to give full effect to the Michigan court order," applying Nevada v. Hall, 440 U.S. 410, 421, 99 S.Ct. 1182, 59 L.Ed.2d 416). The public policy of Georgia does not "permit parties to contract privately for the confidentiality of documents [or testimony], and [thereby] foreclose others from obtaining, in the course of litigation, materials that are relevant to their efforts to vindicate a legal position. To hold otherwise would clearly not serve the truth-seeking function of discovery in [civil] litigation." Grumman Aerospace Corp. v. Titanium Metals Corp. of America, 91 F.R.D. 84, 87-88[1] (E.D.N.Y. 1981).

(d) In our view, a provision that a party to a confidential settlement agreement may nevertheless testify or otherwise comply with a subpoena, court order, or applicable law is an implicit term in such a confidential settlement agreement. "An implicit contractual provision exists where such provision is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it. See Ellis v. Brookwood Park Venture, 161 Ga.App. 242, 243, 288 S.E.2d 308." Herring v. Dunning, 213 Ga.App. 695, 698, 446 S.E.2d 199. Such an interpretation gives full effect to the legitimate purposes of any confidential settlement agreement without running afoul of the public policies of Georgia. In the case sub judice, the trial court erred in concluding that a confidential settlement agreement, even if incorporated as another court's final order, can operate to preclude discovery by Georgia litigants of the parties to that confidential settlement agreement.

2. Where a judgment or ruling is based on an erroneous theory of law, or upon a misapprehension of the applicable law, reversal is required. All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga.App. 232, 233(2), 234, 387 S.E.2d 429. In the case sub judice, the trial court's erroneous ruling on a discovery matter cannot be deemed harmless in this instance. Consequently, we must reverse and remand for additional discovery consistent with this opinion. Upon a subsequent showing that newly discovered evidence is relevant, admissible, and likely to affect the outcome, a new trial is required.

3. Plaintiff's remaining enumerations have been considered and are found to have been rendered moot.

Case No. A97A2329

4. In the cross-appeal, defendant first enumerates the denial of its motion for directed verdict as to each of plaintiff's claims, arguing that plaintiff assumed the risk of an open and obvious hazard, and that plaintiff deliberately misused the chipper/shredder by operating the machine when it was partially disassembled.

Defendant's responses to interrogatories stated in part: "The discharge tunnel was designed so that the machine could run without a screen or bar grate in place, and thereby reducing the clogging caused by the screen or grate. Different variations of the tunnel were considered, but all were essentially the same configuration as the present tunnel." Plaintiff testified that, after he had finished mulching wet and green vegetation with the discharge screen removed (as directed by the owner's manual), he intended to "run all the gasoline out of the machine...