Thomaston v. Fort Wayne Pools, Inc.

• Decision Date: 05 January 1987
• Docket Number: No. 73564,73564
• Citation: 352 S.E.2d 794,181 Ga.App. 541
• Parties: , 3 UCC Rep.Serv.2d 547 THOMASTON v. FORT WAYNE POOLS, INC. et al.
• Court: Georgia Court of Appeals

Page 794

352 S.E.2d 794

181 Ga.App. 541, 3 UCC Rep.Serv.2d 547

THOMASTON v. FORT WAYNE POOLS, INC. et al.

No. 73564.

Court of Appeals of Georgia.

Jan. 5, 1987.

Rehearing Denied Jan. 16, 1987.

Certiorari Denied Feb. 24, 1987.

Joseph R. Neal, Jack E. Boone, Jr., Augusta, for appellant.

Charles C. Stebbins III, James W. Purcell, Michael N. Annis, Neal W. Dickert, William B. Warlick, Augusta, for appellees.

BANKE, Presiding Judge.

The appellant was seriously injured when he dove into the shallow end of a swimming pool at the home of his uncle and aunt. He filed the present action against the appellees, who are the manufacturer of the kit from which the pool was constructed, the distributor of the kit, and the supplier of the vermiculite used in the pool's foundation, alleging that the design and construction of the pool were defective. Prior to filing suit, the appellant had settled a claim against his aunt and uncle and their insurance carrier based on the same injuries. The trial court granted summary judgment to the appellees based on the appellant's execution of a "Release and Indemnity Agreement" in connection with that settlement.

The appellant contends on appeal that his claims are not barred by the release because it is, in reality, a covenant not to sue, and that even if the document is construed as a release, parol evidence is admissible to show that the parties did not intend for it to cover the appellees in this action. He further contends that the release is the product of a mutual mistake and that even if it operates as a bar to further recovery by him in tort, it does not operate to bar his claim for breach of implied warranty against the manufacturer of the pool kit. Held:

1. "In Georgia, a release is 'subject to the same rules as govern ordinary contracts in writing, and parol evidence is not admissible to contradict or vary the terms or stipulations.' Southern Bell Tel., etc., Co. v. Smith, 129 Ga. 558 (59 SE 215) (1907); see also Henslee v. Houston, 566 F2d 475, 479-80 (5th Cir.1978). A general release or a release which contains no reservations, executed in favor of one joint tortfeasor, in full settlement of damages, releases all joint tortfeasors." Menendez v. Perishable Distributors, 254 Ga. 300, 301, 329 S.E.2d 149 (1985). See also Maxey v. Hosp. Auth. of Gwinnett County, 245 Ga. 480, 482, 265 S.E.2d 779 (1980).

There is nothing in the "Release and Indemnity Agreement" to suggest that appellant intended to retain the right to proceed against any other joint tortfeasor. See Harrison v. Johnson, 161 Ga.App. 54, 55, 289 S.E.2d 287 (1982). Rather, the document in question recites that it is "for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident." Consequently, the trial court correctly concluded that the document is a release and that parol evidence was not admissible to vary its terms.

2. The appellant's contention that the appellees need not be considered joint tortfeasors with his uncle and aunt is without merit. " '[I]f the separate and independent acts of negligence of two or more persons or corporations combine naturally and directly to produce a single indivisible injury other than a nuisance, and if a rational basis does not exist for an apportionment of the resulting damages among the various causes, then the actors are joint tortfeasors, jointly and severally liable for the full amount of plaintiff's damages, notwithstanding the absence of voluntary intentional concert of action.' " Zimmerman's, Inc. v. McDonough Constr. Co., 240 Ga. 317, 320, 240 S.E.2d 864 (1977). Compare Parks v. Palmer, 151 Ga.App. 468(2), 260 S.E.2d 493 (1979); Smith v. McLendon, 142 Ga.App. 608, 236 S.E.2d 692 (1977). It is apparent from the record in this case that appellant's injury was single and indivisible, and that no rational basis exists for apportionment of the resulting damages. Appellant's reliance on Williams v. Physicians, etc., Community Hosp., 249 Ga. 588, 292 S.E.2d 705 (1982), is misplaced in that that case involved successive tortfeasors and successive injuries.

3. "An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when the mistake operates as a gross injustice to one and gives an unconscionable advantage to the other, may be relieved in equity. OCGA § 23-2-22. This principle has been applied to releases in Roberson v. Henderson Chem. Co., 171 Ga.App. 722(3) (320...