author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A91A1259.
    LANDIS v. ROCKDALE COUNTY et al.
    (445 SE2d 264)
   Andrews, Judge.

After granting certiorari to review our decision in Landis v. Rockdale County, 206 Ga. App. 876 (427 SE2d 286) (1992), the Supreme Court entered an order “remand [ing] this case to the Court of Appeals for it to reconsider its decision in light of City of Rome v. Jordan, [263 Ga. 26 (426 SE2d 861) (1993)].”

In Landis, supra, we assumed, for purposes of the defendants’ motion for summary judgment at issue, that the Rockdale County deputy sheriff observed a noticeably intoxicated driver who approached and spoke to him while he was directing traffic at an intersection. The deputy failed to arrest or otherwise restrain the driver from continuing to drive her automobile. We further assumed that about two hours later, after the driver left a party, and while driving her car in an intoxicated condition, she caused an automobile accident which resulted in the death of the plaintiff’s husband. The facts are more fully set forth in Landis, supra.

On behalf of her deceased husband, the plaintiff sued, among others, Rockdale County, the sheriff of Rockdale County, and the deputy sheriff who observed the intoxicated driver. The controlling issue on the defendants’ motion for summary judgment was whether the deputy sheriff, who observed the intoxicated driver before the fatal accident, had a duty to the plaintiff’s decedent to protect him from the negligence of the intoxicated driver by arresting or otherwise restraining the intoxicated driver from continuing to drive.

This court’s task is to reconsider this case in light of the Supreme Court’s decision in City of Rome, supra. City of Rome involved a negligence claim against the city by a citizen who was injured by the criminal assault of a third person. The injured citizen claimed that the city police negligently failed to respond to protect her from the attack after she telephoned the police several times before the attack, asking for assistance. In determining that the city was not liable on the negligence claim, the Supreme Court set forth certain general principles applicable to a negligence claim for inadequate police protection.

First, “[t]he threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care.” Id. at 27. Second, “[w]hen considering whether there is a duty upon which [a governmental unit] may be held liable for the failure to provide police protection to individual citizens . . . [t]he majority rule is that liability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public, except where there is a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual. . . . Therefore, where failure to provide police protection is alleged, there can be no liability based on a [governmental unit’s] duty to protect the general public. . . . Hence, where there is a special relationship between the individual and the [governmental unit] which sets the individual apart from the general public and engenders a special duty owed to that individual, the [governmental unit] may be subject to liability for the nonfeasance of its police department. ... In order to determine whether such a special relationship exists, we adopt the following requirements: (1) an explicit assurance by the [governmental unit], through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the [governmental unit] that inaction could lead to harm; and, (3) justifiable and detrimental reliance by the injured party on the [governmental unit’s] affirmative undertaking.” (Citations and punctuation omitted.) Id. at 27-29.

In adopting the three requirements to establish the existence of a special relationship, the Supreme Court noted that “[s]ince the situation is not presented by the facts of this case, we do not determine whether a special duty may exist even in the absence of a special relationship where a police officer is present at the scene of a crime, has the knowledge and the resources to act to the benefit of the injured party, yet does not act.” Id. at 29, n. 4. The dissent believes that this language evinces the Supreme Court’s intention to distinguish its holding in City of Rome from the factual situation presented in Landis, where the police officer observed but failed to stop the intoxicated driver hours prior to the fatal accident. Accordingly, the dissent ignores the general principles governing liability set forth in City of Rome and concludes that, under, the present facts, no special relationship between the plaintiff’s decedent and the governmental unit was necessary in order to impose a special duty owed to protect plaintiffs decedent from the negligence of the intoxicated driver.

We cannot agree with the conclusion reached by the dissent. It is true that the facts in Landis, where the relationship at issue was between the deputy and the intoxicated driver, may not lend themselves to application of the three special relationship requirements adopted in City of Rome, where the relationship at issue was between the police and the injured citizen. Nevertheless, City of Rome provides guidance in our reconsideration of Landis in light of the general principle which recognizes that liability for a failure to provide police protection cannot be based on a duty to protect the general public. A more logical understanding of the situation distinguished by the Supreme Court in City of Rome is that, even in the absence of one or more of the three express requirements for the existence of a special relationship with the injured citizen, a special duty to protect that citizen might be found under some circumstances where a police officer is present at the scene of a crime about to be perpetrated against the citizen (who at that point is an identifiable victim) and the officer fails to act to protect the citizen despite his ability to do so. No decision need be rendered on such a theory, since this is obviously not the type of situation presented by the facts in Landis.

In Landis, when the deputy sheriff was confronted with the intoxicated driver, plaintiff’s decedent was not an identifiable victim in immediate danger of harm. At that point, the deputy sheriff had no contact with plaintiff’s decedent. Although the deputy may have been present at the scene of a crime in that he observed an intoxicated driver, the deputy’s duty to enforce the drunk driving laws was to the public in general, not specifically to plaintiff’s decedent, who was killed hours later in a collision with the intoxicated driver at another location. “The special duty required to maintain the action cannot be established by the mere fact that someone with whom the official had prior contact subsequently injured the plaintiff or the plaintiff’s decedent. [Cits.] In deciding the issue of when, if ever, an official’s public duty precipitates into a special one to prevent harm to an individual, the law requires, to maintain the action, a showing of imminent harm to an identifiable victim. [Cits.]” Shore v. Town of Stonington, 444 A2d 1379, 1383 (Conn. 1982) (no liability although police stopped and released drunk driver, who later caused fatal accident).

A clear majority of states which have considered whether police officers have a duty to restrain a drunk driver have followed the rationale of the “public duty” doctrine, which, as adopted in City of Rome, supra, requires that liability be based on facts establishing a duty owed to the injured individual rather than a duty to protect the general public. See Evett v. City of Inverness, 224 S2d 365, 366 (Fla. Dist. Ct. App. 1969) (police officer who stopped but released an intoxicated driver owed no duty, different from that owed to the general public, to the plaintiff’s decedent who was later killed in an accident caused by the intoxicated driver); Crosby v. Town of Bethlehem, 457 NYS2d 618 (1982) (no duty owed to plaintiff’s decedent even though the drunk driver who caused the fatal accident had a conversation with a police officer before the accident; the officer believed the driver was intoxicated but did not restrain him from driving); Crider v. United States, 885 F2d 294, 298, n. 3 (5th Cir. 1989) (construing Texas law to be in accord with the “public duty” rationale applied by the majority of states dealing with failure of police to restrain a drunk driver); Landis, supra at 883 (Pope, J., dissenting and citing majority position as set forth in Annotation, Failure to Restrain Drunk Driver as Ground of Liability of State or Local Government Unit or Officer, 48 ALR4th 320 (1986)).

In determining whether the deputy in Landis owed a duty to plaintiff’s decedent, the foregoing principles must be applied in the context of the general rule of Restatement, Torts 2d, § 315, as stated in Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982), that “ ‘there is no duty to control the conduct of third persons to prevent them from causing physical harm to others.’ Bradley Center dealt with specific exceptions to the general rule under Restatement, Torts 2d, §§ 315 and 319. Section 315 sets forth two exceptions to the no duty rule where ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.’ Section 319 is a more specific statement of the type (a) exception of section 315, and provides that: ‘One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.’ ” Landis, supra at 884 (Andrews, J., dissenting).

Under the type (b) exception of § 315, the question is whether there was a special relationship between the deputy sheriff and plaintiff’s decedent giving rise to a duty imposed on the deputy to protect plaintiff’s decedent from the negligence of the intoxicated driver. As demonstrated in the foregoing analysis, no such special relationship and no such duty existed because the only duty owed by the deputy at the time he encountered the intoxicated driver was a duty to protect the public in general.

The facts of Landis are more specifically related to the situation described in the type (a) exception of §§ 315 and 319, as discussed in Bradley Center, supra. Under these sections, the question is whether there was a special relationship between the deputy sheriff and the intoxicated driver which imposed a duty on the deputy to control the driver’s conduct. There is no special relationship and no duty imposed under these sections because the deputy sheriff exercised no control over the intoxicated driver. “[T]he police officer’s encounter with Taggart does not give rise to the type of ‘special relation’ contemplated in exception (a) of § 315. The exception under § 315 (a) has been applied in Bradley Center and other cases where there is evidence of some type of established, continuous relationship with the third party in which control is exercised. See Keppler v. Brunson, 205 Ga. App. 32 (421 SE2d 306) (1992); Ermutlu v. McCorkle, 203 Ga. App. 335, 336-337 (416 SE2d 792) (1992); Associated Health Systems v. Jones, 185 Ga. App. 798, 801-802 (366 SE2d 147) (1988). The passing encounter of a police officer with a third person in which the officer may or may not determine that probable cause exists to exercise his authority to make an arrest, is not such a ‘special relation’ for purposes of creating a tort duty to prevent a third person from harming others.” Landis, supra at 885 (Andrews, J., dissenting); see also id. at 882-883 (Pope, J., dissenting).

Moreover, “although a police officer has authority to arrest a person without a warrant where an offense is committed in his presence or within his immediate knowledge (OCGA § 17-4-20), this authority alone does not create a duty to arrest for purposes of a tort action. The lack of such an affirmative duty to arrest sufficient to support a tort action is implicit in the holding of Ferguson v. City of Doraville, 186 Ga. App. 430, 431-432 (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, n. 8 (376 SE2d 861) (1989).” Landis, supra at 884 (Andrews, J., dissenting); see also McGuirt v. Lawrence, 193 Ga. App. 611, 612 (389 SE2d 2) (1989) (physical precedent).

“As a majority of this court noted in Ferguson, [supra] (quoting Pierson v. Ray, 386 U. S. 547, 555 (87 SC 1213, 18 LE2d 288) (1967), overruled on other grounds Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396) (1982)), ‘[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.’ ” Landis, supra at 883 (Pope, J., dissenting). The dissent’s imposition of a special duty under the facts of this case places police officers in just such a precarious position.

Moreover, by reference to Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), the dissent appears to be re-asserting the position originally taken in Landis, supra, by creating an expanded common law duty imposed on police officers by analogy to the alcohol provider statutes at OCGA §§ 3-3-22 and 3-3-23. “[T]he rationale underlying our Supreme Court’s decision in Sutter, [supra], and OCGA §§ 3-3-22 and 3-3-23 do not provide a basis for the expanded common law duty created by the majority in this case. The rationale underlying Sutter and those statutes is that one who provides alcoholic beverages to a person who is noticeably intoxicated and who will soon be driving and/or to one who is younger than the legal drinking age by their own actions increases the risk to others using the highways that they will be harmed by the intoxicated persons. A police officer, on the other hand, by merely coming into contact with someone who is intoxicated, has done nothing to expose the travelling public to any greater danger.” Landis, supra at 882 (Pope, J., dissenting). We decline to sanction such an expansion of a police officer’s duty and potential tort liability. See id. at 886 (Andrews, J., dissenting).

City of Rome, supra, provides additional support for the conclusion that the defendants violated no duty for which they could be held liable in tort for the plaintiff’s claims. The trial court correctly granted the defendants’ motion for summary judgment.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Johnson, Blackburn and Smith, JJ., concur. Beasley, P. J., and Cooper, J., dissent.

Beasley, Presiding Judge,

dissenting.

This tort case presents the important issue of whether a law enforcement officer owed a duty to that segment of the general public, which is within the path of travel of an intoxicated driver within his immediate zone of control, to protect a member of that segment who was killed less than two hours later. The alleged breach is the failure to exercise that control by taking custody of the driver or by taking other reasonable steps to prevent her driving. The facts of the case are set out in our original decision, Landis v. Rockdale County, 206 Ga. App. 876 (427 SE2d 286) (1992). Defendants’ petition to the Supreme Court of Georgia for writ of certiorari was granted. Ultimately, the Supreme Court remanded the case to this Court for reconsideration in the light of its decision in City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993).

The circumstances of the present case are outside the scope of City of Rome v. Jordan. Jordan involves the “special relationship” exception described in the Restatement (Second) of Torts, § 315 (b), between the defendant and the plaintiff. In footnote 4 of the opinion, the Supreme Court stated: “Since the situation is not presented by the facts of this case, we do not determine whether a special duty may exist even in the absence of a special relationship where a police officer is present at the scene of a crime, has the knowledge and the resources to act to the benefit of the injured party, yet does not.” Recalling from our earlier decision that the posture of this case focuses our concern on the showing made by plaintiff’s evidence on motion for summary judgment, the facts conform to the situation explicitly distinguished in the Supreme Court footnote.

There is evidence that Deputy Drummond was present at the scene where Taggart was driving under the influence, talked with her, was aware of her impaired state, and could have terminated her driving and the palpable risk of injury created by it that evening. This response to her demonstrated condition would have saved the life of plaintiff’s decedent.

Having determined that City of Rome v. Jordan is not directly controlling, the question remains whether or not the rule announced therein should extend to the circumstances of the present case. I conclude that it should not, to the extent of requiring a special relationship in the sense of direct contact between the injured party and the governmental unit because, as we discussed in our earlier consideration of the case, of the “ ‘risks involved and the General Assembly’s efforts to control drunk driving for the protection not only of those drivers but others on the highways. . . .’ [Cit.]” Landis, supra, citing Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985); OCGA § 40-6-391. See Carleton v. Town of Framingham, 615 NE2d 588 (Mass. App. 1993), which noted that its legislature had determined that intoxicated drivers should be removed from the highway, so that a police officer’s decision to place in protective custody a person whom he knows to be intoxicated and who he has probable cause to believe will imminently drive on the highway is a decision which should not be sheltered by immunity.

Tort liability in drunk driving cases is extended to social hosts and to commercial purveyors of alcoholic beverages, for the benefit of unidentified members of the traveling public, because of the high risk of injury and high rate of occurrence. Sutter, supra; Studebaker’s of Savannah v. Tibbs, 195 Ga. App. 142 (392 SE2d 908) (1990) (physical precedent); Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642 (a) (362 SE2d 377) (1987) (physical precedent); OCGA § 3-3-22. These are adoptions of the special relation between the defendant actor (whose duty is at issue) and the third person (intoxicated driver). This gives rise to a duty toward foreseeable victims. The Restatement (Second) of Torts § 315 (a) recognizes this exception to the general principle that a person has no duty to control a third person’s conduct. See Jean W. v. Commonwealth, 610 NE2d 305, 315 (2) (Mass. 1993).

A policeman’s duty, which is undergirded by an officially imposed authority to act, implements that public policy. The duty arises from the officer’s presence at the scene of a crime (drunk driving), the nature of which crime gives rise to the occurrence of a foreseeable act (injury-producing car crash), coupled with the total power to prevent the latter. That is, it arises from the unique position, power, knowledge of the officer, and foreseeability, to prevent the tort. See Jean W. v. Commonwealth, supra; Irwin v. Ware, 467 NE2d 1292 (Mass. 1984). The foreseeability of the harm is a crucial factor in finding the duty and in justifying liability. Irwin, supra. In this case a breach of this duty, if found, would permit recovery to the plaintiff if coupled with proximate cause. See Shore v. Town of Stonington, 444 A2d 1379, 1384 (Conn. 1982), Peters, A. J., dissenting, and cases cited in the dissent.

Decided March 18, 1994

Reconsideration denied April 1, 1994

Thomas W. Malone, Peterson, Dillard, Young, Self & Asselin, James M. LaChance, Lawrence J. Pond, for appellant.

Jenkins & Eells, Frank E. Jenkins III, Maddox, Starnes & Nix, John A. Nix, Chambers, Mabry, McClelland & Brooks, V. Jane Reed, Dawkins & Serio, Harrill L. Dawkins, for appellees.

Abdul S. Valiani, pro se.

I conclude that the trial court erred in granting summary judgment to the three defendants on the claim of Drummond’s negligence.

I am authorized to state that Judge Cooper joins in this dissent.

       We determined that sovereign immunity did not bar the action.

        City of Lawrenceville v. Macko, 211 Ga. App. 312, 314 (2) (439 SE2d 95) (1993), applies this.


source: Caselaw Access Project

author:
Pope, Chief Judge.
      Birdsong, Presiding Judge, part. Beasley, Presiding Judge,
      Andrews, Judge,

license: Public Domain

text:
    A93A1451.
    MULTIMEDIA WMAZ, INC. v. KUBACH.
    (443 SE2d 491)
   Pope, Chief Judge.

In this invasion of privacy case, defendant appeals from a jury verdict awarding plaintiff $500,000 in general damages and $100 in punitive damages.

Plaintiff has Acquired Immune Deficiency Syndrome (AIDS). In December 1989, defendant television station produced a live call-in show on the topic of AIDS and drug use. Through his physician, Dr. Harold P. Katner, plaintiff agreed to participate. Defendant told Dr. Katner, and Dr. Katner told plaintiff, that his face would not be recognizable to the television audience; and plaintiff would not have participated in the show without this assurance that he would not be recognizable. Defendant planned to electronically distort plaintiff’s image through a process called digitization. Defendant had previously aired another program on AIDS in which some of Dr. Katner’s female patients appeared with their faces digitized. For the first seven seconds plaintiff was shown, however, the digitization was inadequate and plaintiff was recognizable. Defendant’s employee testified that he pre-set the level of digitization, and that he thought it was sufficient. He did not use plaintiff and the other participant to pre-set the digitization even though they were there and available, however; nor did he allow them to see the level of digitization and give them the opportunity to ask that it be increased as defendant had with the female patients on the earlier AIDS talk show. Defendant’s employee also testified that he did not like to put the level of digitization too high because if he did so, the viewing audience would lose interest.

When plaintiff was first diagnosed with AIDS in late 1987, his physical condition was poor and he was depressed. After he began taking the drug AZT in the spring of 1988, however, he enjoyed a remarkable turnaround in both his physical and emotional condition. Plaintiff was upbeat and wanted to live as long as he could. He went out with friends often, and frequently would be greeted by people who knew him from when he owned and operated an extremely popular restaurant in Macon (1975-1985). In September 1989, plaintiff began working on a part-time basis at Peter Pan Cleaners. He worked 20 to 25 hours a week, waiting on customers and doing whatever needed to be done. His boss testified that he was outgoing and friendly. He was not actually paid a salary, but received the equivalent of $3.35 per hour in food, dry cleaning and use of a vehicle, as well as some cash. After defendant’s broadcast, plaintiff became withdrawn, extremely depressed and almost suicidal. He refused to leave his home for fear of being recognized and pointed out as an AIDS patient, and this situation was exacerbated when his sister convinced him to go out to a fast food place and he was in fact recognized and harassed by several young people. Plaintiff was unable to continue working at the cleaners because he no longer felt he could deal with the public at the front counter, though he did work in the back for a few months during the cleaners’ busy season — the only time his boss could afford to keep him on without waiting on customers. Dr. Katner testified that when a person has AIDS, stress and emotional upset often have a detrimental effect on their physical condition, and that in plaintiff’s case it manifested itself in shingles, an extremely painful disease associated with stress. His physical condition, particularly his immune system condition, dropped dramatically after defendant’s broadcast. This very bad situation lasted for about a year. Since then plaintiff has improved, but his condition is still worse than it was before the broadcast. Plaintiff sued defendant for invading his privacy by publicly disclosing private facts about him, and defendant appeals from the jury’s verdict for plaintiff.

1. Defendant contends plaintiff “waived” his right to bring this action for public disclosure of private facts by making the fact tbat he had AIDS “public” prior to defendant’s broadcast. Among the elements necessary to establish a cause of action for public disclosure of embarrassing private facts is the requirement tbat “the facts disclosed to the public must be private, secluded or secret facts and not public ones.” Cabaniss v. Hipsley, 114 Ga. App. 367, 372 (151 SE2d 496) (1966). Accordingly, the protection afforded an individual’s right to privacy may be waived or withdrawn “ ‘to whatever degree and in whatever connection [his] life has ceased to be private.’ ” Id. at 374. In Cabaniss, for example, we held that where an exotic dancer allowed various dancing establishments to use a particular publicity photo of her, she could not maintain an action for public disclosure of private facts against another dancing establishment (and the magazine it advertised in) for using the same photo without her permission. And in Cummings v. Walsh Constr. Co., 561 FSupp. 872 (S.D. Ga. 1983), a federal district court applying Georgia law held that a woman could not sue her supervisor for public disclosure of private facts for telling co-workers about their affair when she herself had told other co-workers about their affair. As indicated by these cases, waiver in this context is a relative term: the scope of the waiver is related to and limited by the scope of the actions on which the waiver is based.

In this case, defendant points to evidence that prior to its broadcast, plaintiff: (a) appeared on a national television show, allowing his back to be viewed undigitized and his voice to be heard undisguised; and (b) acknowledged his disease to family members, friends, medical personnel and members of his AIDS support group. Plaintiff’s face was adequately digitized in the earlier nationwide program, however, and the evidence did not show that his identity was revealed to the community by that broadcast. Moreover, we cannot agree that plaintiff made the fact of his disease public as a matter of law, thereby waiving his right to keep it from the entire television viewing public in Macon, by telling a relatively small number of people he thought had reason to know of his disease; for unlike the disclosures of the plaintiffs and defendants in Cabaniss and Cummings, plaintiff’s disclosure of the fact of his disease to his family, friends and support group and defendant’s disclosure of plaintiff’s identity as an AIDS patient to the television viewing public in Macon were similar in neither degree nor context.

“[The right of privacy] may be waived for one purpose and still asserted for another; it may be waived in behalf of one class and retained as against another class.” Pavesich v. New England Life Ins. Co., 122 Ga. 190, 199 (50 SE 68) (1905). Plaintiff disclosed the fact that he had AIDS to family, friends, medical personnel and members of his support group. He wanted these individuals to know of his illness because they cared about him and/or because they also had AIDS. Although there was testimony that plaintiff did not explicitly tell his friends and family not to tell anyone else, there was also testimony that they understood that plaintiff’s condition was not something they would discuss indiscriminately. Defendant’s disclosure went far beyond the scope of any prior disclosure by plaintiff, in terms of both audience and purpose. Moreover, defendant explicitly agreed to respect plaintiff’s privacy in order to secure his participation in the show. Under these circumstances, the jury was authorized to find that the fact that plaintiff had AIDS was not public prior to defendant’s broadcast, and the trial court did not err in denying defendant’s motion for directed verdict on this ground.

2. Defendant also argues that it cannot be liable for its disclosure of plaintiff’s identity as an AIDS patient because the disclosure occurred during a broadcast on a matter of public interest, citing Waters v. Fleetwood, 212 Ga. 161 (91 SE2d 344) (1956); Tucker v. News Pub. Co., 197 Ga. App. 85 (1) (397 SE2d 499) (1990); Cox Communications v. Lowe, 173 Ga. App. 812 (1) (328 SE2d 384) (1985); and Ramsey v. Ga. Gazette Pub. Co., 164 Ga. App. 693 (1) (297 SE2d 94) (1982). Each of the cases cited by defendant holds that a publisher of information regarding a criminal incident or investigation does not invade the privacy of those involved in that incident or investigation when it identifies them, even if they are involved in the incident or investigation through no fault of their own; a crime is a matter of legitimate public interest, and the individual’s privacy interest is outweighed by first amendment interests in free expression regarding matters of legitimate public interest. See, e.g., Waters, 212 Ga. at 167. These cases do not control this situation, however, because plaintiff in this case was not involved in a criminal incident or investigation. Unlike the identities of those involved in crimes, the identities of those suffering from AIDS are generally not a matter of public interest, as our legislature has recognized. See OCGA § 24-9-47 (b) & (o) (placing restrictions on disclosure of “AIDS confidential information” and making it a misdemeanor to violate those restrictions) and § 31-22-9.1 (2) (defining “AIDS confidential information” to include the fact that the person is being treated for AIDS). Moreover, we note that defendant in this case, unlike the defendants in the cases it relies on, was only in the position to disclose plaintiff’s identity as an AIDS patient because of its promise to plaintiff that there would be no such disclosure. Cf. Cohen v. Cowles Media Co., _ U. S. _ (111 SC 2513, 115 LE2d 586) (1991) (first amendment does not prohibit recovery of damages from newspaper for breach of promise to keep source’s name confidential).

Defendant suggests we should nonetheless rule in its favor on policy grounds, perhaps fashioning a rule analogous to the Good Samaritan Statute (OCGA § 51-1-29) which would provide that broadcasters should be insulated from liability for anything that happens as a result of their negligence when they are broadcasting a “public service” show. Otherwise, it posits, broadcasters will refuse to produce shows with AIDS patients such as the one plaintiff participated in because of fear of liability, and these shows are important to educate the public. This policy argument cuts both ways, however: broadcasters may shy away from producing such shows if this verdict is upheld, but AIDS patients who have not publicly acknowledged their disease may refuse to participate in such shows if it is not. In any case, the policy decision is one for the legislature to make, as it did when it passed the Good Samaritan Statute.

3. Defendant next argues that its motion for directed verdict should at least have been granted with respect to punitive damages. “Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). We agree that the evidence was insufficient to support an award of punitive damages. We do not agree that the entire award (including the general damage award) must be vacated because the $100 punitive damages award is unsupported, however. Petrolane Gas Sue. v. Eusery, 193 Ga. App. 860 (389 SE2d 355) (1989), in which we vacated an entire award because the trial court improperly instructed the jury on punitive damages, is distinguishable because the verdict in that case was a general verdict: the jury did not specify how much of its award was for general damages and how much was for punitive damages, and we could not guess. Here, on the other hand, the trial court held a bifurcated trial as mandated by OCGA § 51-12-5.1 (d), and having been properly instructed, the jury awarded $500,000 in general damages and $100 in punitive damages. The $500,000 is identifiable and separable and was in fact the minimum amount sought by plaintiff for his general damages. There is no suggestion that any evidence was admitted in the first portion of the trial which would not have been admitted had the possibility of punitive damages been excluded. Thus, we affirm the judgment below on condition that the punitive damage award be written off. See Cassidy v. Wilson, 196 Ga. App. 6, 9 (395 SE2d 291) (1990).

4. Defendant contends that since plaintiff took the position that his homosexual lifestyle was irrelevant to the issues at trial, the lower court erred in excusing for cause three potential jurors who expressed bias against homosexuals. This contention is without merit. See Morris v. Bonner, 183 Ga. App. 499 (1) (359 SE2d 244) (1987) (trial court has broad discretion in dismissing potential juror for bias).

5. Defendant argues that the trial court erred in submitting the question of lost wages to the jury. It argues that there is insufficient evidence of what plaintiff might have earned, so any award must be speculative. We disagree. Plaintiff and his former boss testified that prior to the broadcast, plaintiff worked 20 to 25 hours a week for the equivalent of $3.35 an hour. Plaintiff’s former boss also testified that she would have continued to employ plaintiff indefinitely if he had been able to wait on customers, but that he was unable to do so after the broadcast because he was afraid to deal with the public. This evidence provided a sufficient basis for an award of lost wages.

6. Defendant asserts that the trial court erroneously ruled that damage to reputation is not a necessary element of an invasion of privacy cause of action, and consequently erred in excluding evidence defendant wanted to introduce regarding plaintiff’s social history. We agree with the trial court that damage to reputation is not necessary to establish an invasion of privacy. While language in the early cases suggested that the interest protected by the tort was that of reputation, see, e.g., Cabaniss, 114 Ga. App. at 372, more recent cases have recognized that invasion of privacy is an action for personal injury which may involve injury to reputation but also may involve injury to “the plaintiffs’ personal sensibilities and mental repose.” Hudson v. Montcalm Pub. Corp., 190 Ga. App. 629, 634 (379 SE2d 572) (1989). In this case, plaintiff presented evidence that defendant’s actions caused him severe mental distress with physical repercussions. Thus, the absence of evidence of damage to his reputation is not fatal to his cause of action. Moreover, we note that the evidence defendant sought to introduce — excerpts from the “Social History” portion of plaintiff’s medical records — would not have been relevant to show reputation anyway, as it did not reflect information known in the general community.

7. We have reviewed defendant’s remaining enumerations of error and find them to be without merit.

Judgment affirmed on condition.

Cooper, Johnson and Blackburn, JJ., concur. Beasley, P. J., concurs and also concurs specially. McMurray, P. J., Birdsong, P. J., Andrews and Smith, JJ., dissent.

Birdsong, Presiding Judge,

concurring in part and dissenting in

part.

I agree that the evidence does not adequately raise the issue of punitive damages, and that the trial court erred in denying appellant’s (WMAZ) motion for directed verdict as to punitive damages. However, in my view, prejudicial error resulted when the jury was given a totally unauthorized charge as to punitive damages at the same time it was instructed and subsequently deliberated as to the issue of liability and general damages; in this instance, by so placing the unauthorized issue of punitive damages before the jury, a fair risk of taint reasonably was created as to the $500,000 general damage award.

1. Applying the review standard of “any evidence” (Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267)), it is my conclusion that the trial court erred in denying appellant’s motion for directed verdict as to punitive damages.

The statutory standard for award of punitive damages is promulgated in OCGA § 51-12-5.1. By statute, something more than mere commission of a tort is required to support the imposition of punitive damages. Troutman v. B. C. B. Co., 209 Ga. App. 166, 168 (433 SE2d 73). Even gross negligence will not authorize the recovery of punitive damages. Id.

Before trial appellee was requested to make admissions, pursuant to OCGA § 9-11-36. Among the admissions made by appellee were that “the master videotape revealed that at no time [was appellee] undigitized,” and that he did not contend the tape had been altered or subject to tampering. In any event, testimony was presented by appellant that the program director pre-set the level of digitization and checked it for adequacy and the production manager also saw the digitization level and considered it adequate. Although the evidence was in conflict as to the level of digitization that was pre-set or whether any digitization had been effected by the procedure attempted to be employed, the testimony to the effect that appellant’s personnel had at least attempted to pre-set the digitization was not controverted either directly or indirectly by reasonable inference. Moreover, examination of the tape conclusively establishes that after the initial momentary revealing of appellee’s face, an adequate level of digitization was obtained within seven seconds due to corrective action immediately being effected by appellant’s personnel. Further, the tape shows that a slide of a skin lesion was immediately displayed, and there exists some expert opinion testimony that this was done to enable station personnel time to correct the digitization problem.

Where, as in this case, the defendant has exercised at least some degree of care, and even though its lack of strict control to protect appellee’s identity from disclosure as a person who has contracted AIDS may have amounted to negligence or even gross negligence, it does not constitute any evidence of wilful misconduct or of an entire want of care necessary to support a jury award of punitive damages. Compare Wilson v. Brighton Homes, 204 Ga. App. 677, 680 (4) (420 SE2d 360); Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85). The evidence, as a matter of law, was insufficient to support a finding of wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care, as required by OCGA § 51-12-5.1 (b). After construing the evidence most favorably for appellee, a verdict in favor of appellant/defendant was demanded as to punitive damages. See Wilson, supra; see generally Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554). Accordingly, as must be conceded by the majority, appellee was not entitled either to have the jury charged or to have them consider any issue of punitive damages in arriving at their verdict.

2. Assuming appellee did not totally waive his right of privacy — at least as to those persons outside the station viewing the broadcast via television — the question remains whether the $500,000 general damage verdict can be sustained in view of the erroneous consideration of the question of punitive damages by the jury. In this instance, the initial charge to the jurors requiring them to determine whether punitive damages should have been imposed created a fair risk of taint to the general damage award notwithstanding the bifurcated proceedings conducted as to the ultimate award of punitive damages. The jury was given a detailed charge on punitive damages after , being advised that “[i]n tort actions, there may be aggravating circumstances which may warrant the awarding of additional damages called punitive damages.” (Emphasis supplied.) This charge did not expressly instruct the jury as to what point in the proceeding the amount of such additional damages would be determined if the jury found it should be awarded. The record on its face establishes that the jury awarded $500,000 compensatory damages to appellee, but in the subsequent bifurcated proceeding awarded appellee punitive damages of only $100, as against defendant corporate entity. This $100 punitive damage award was made notwithstanding that the jury was instructed by the court that “punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize or deter a defendant.” This is a correct statement of the statutory purpose of punitive damages. OCGA § 51-12-5.1 (a), (c).

I believe, as a matter of law, that a punitive damage award of only $100, under the existing circumstances, is so grossly disproportionate when compared to the substantial general damage award adjudged, and is so blatantly incapable of fulfilling the statutory purposes to punish, penalize, or deter, that it cannot be ruled out that the jury erroneously included punitive damage elements within their $500,000 general damage award. Compare Petrolane Gas Sue. v. Eusery, 193 Ga. App. 860, 862 (2) (389 SE2d 355). Because a reasonable potential or a fair risk for such error exists, appellant WMAZ has been denied a right of fair trial as to these matters. I agree with the analysis of Presiding Judge Beasley in Petrolane that even assuming appellee were to counter that “there was evidence of compensatory damage alone to support the amount of the award to [appellee], . . . the jury was not obligated to award all actual damage that the evidence might have authorized. That evidence, when compared with the verdict [in its totality], does not lead inexorably to the conclusion that only compensatory damages were awarded.” Id. at 863. (Incidentally, the record reveals that the maximum range of damages which the jury could have found to have been proven by appellee, due to any actual loss of wages, would sustain but a relatively small portion of the $500,000 general damage award.) It cannot inexorably be concluded, under the existing circumstances, that the verdict for general damages did not include unauthorized additional or punitive damages based on perceived aggravating circumstances. Id.

Contrary to the majority’s view, the $500,000, although identifiable is not, under the attendant circumstances, separable from the punitive damages award. The token award of only $100 punitive damages strips the insulating veneer of a bifurcated proceeding from the general damages award; the reasonable potential of a clear risk that unauthorized punitive damage considerations have permeated the $500,000 general damages award is inescapable. The harm here arises by virtue of the following procedure: the jury, during the liability and general damages phase of the bifurcated proceeding, was erroneously instructed they could consider whether to award punitive damages, decided that such an award was appropriate (thereby having found the existence of unauthorized aggravating factors), and not being instructed when and how a punitive award was to be made by them thereby was left to speculate as to how such an award was to be effected. This procedure when viewed in the context of what actually happened in the second stage of the bifurcated proceedings (that is, the award of a punitive damage amount so low that as a matter of law it could not have been adjudicated in accordance with punitive damage instructions given) gives rise to the fair risk of taint to the $500,000 award. It is not the nature of the evidence admitted in the first portion of the trial or the alleged minimum amount of damages sought by appellee that is relevant (particularly, where the nature of the general damages sought in large measure is incapable of precise mathematical calculation); what is relevant is whether a fair risk is reasonably created that the jury added punitive damages into its general damage award calculation. Cassidy v. Wilson, 196 Ga. App. 6, 9 (395 SE2d 291) relied on by the majority to write off the punitive damages is inapposite to the facts of this case; the punitive damages award in Cassidy did not on its face reflect that it was a mere token award giving rise to a reasonable fair risk of taint to the entire general damage award. Although Multimedia WMAZ is a corporation, it too is entitled to a fair trial as to damages.

Additionally, “[instructions not warranted by the evidence are cause for new trial unless it is apparent that the jury could not have been misled thereby.” Harden v. Drost, 156 Ga. App. 363, 366 (4) (274 SE2d 748). When, as here, a charging error is shown to have occurred, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless. Foskey v. Foskey, 257 Ga. 736 (2) (363 SE2d 547). The record does not support a finding of harmless error, particularly in view of the obvious discrepancy between the amount of general and punitive damages awarded by the jury.

This judgment must be reversed and a new hearing conducted, at least, as to the issue of compensatory damages.

I am authorized to state that Judge Smith joins in this opinion.

Beasley, Presiding Judge,

concurring specially.

Upon reconsideration, the fallacy of the previous majority position has been made clear. There was no waiver of the right to retain from general public knowledge, as disseminated by public broadcast media, the fact that plaintiff, a private person, had contracted AIDS. This is so because, first of all, he had expressly reserved the right to nondisclosure of his identity and the defendant had agreed to conceal it as a condition of his participation in the show.

There are constitutionally protected zones of privacy, some of which are identified in Griswold v. Connecticut, 381 U. S. 479, 484-486 (85 SC 1678, 14 LE2d 510) (1965). Sixty years previously, the Supreme Court of Georgia expressly acknowledged in Georgia law the right of privacy, and the concept that it has many forms. Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 SE 68) (1905). In describing it, one of the court’s illustrations was that one “may wish to live a life of privacy as to certain matters and of publicity as to others.” Id. at 196. The right’s foundation is in “the instincts of nature,” id. at 194, among which are “the right of personal security and the right of personal liberty.” Id. at 195. The Georgia Supreme Court recently highlighted these in Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 704 (1) (409 SE2d 835) (1991). Griswold referred to this same “ ‘indefeasible right of personal security, personal liberty and private property’ ” as the source of the Fourth and Fifth Amendments. Gris-wold, supra at 484, footnote. Pauesich did not describe the right as being scattered in penumbras throughout the guarantees of the bill of rights, as did Griswold. Instead, it declared the right of privacy, within certain limits, to be “guaranteed to persons in [Georgia] by the constitutions of the United States and of the State of Georgia, in those provisions which declare that no person shall be deprived of liberty except by due process of law.” Pavesich, supra at 197. In addition to being guaranteed by Paragraph I of our State’s Bill of Rights, it is more directly guaranteed by Paragraph XXVIII: “The enumeration of rights herein contained as a part of this Constitution shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed.” At the time of Pavesich, it was the Constitution of 1877, Art. I, Sec. V, Par. II.

In any event, the right of privacy extends to embarrassing private facts which, if invaded by unauthorized public disclosure, gives rise to a tort claim against the discloser. Cabaniss v. Hipsley, 114 Ga. App. 367, 370, 372 (151 SE2d 496) (1966). It has been described as “ ‘the tort of public disclosure,’ ... in which the plaintiff claims the right to be free from unwanted publicity about his private affairs, which, although wholly true, would be offensive to a person of ordinary sensibilities.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 489 (95 SC 1029, 43 LE2d 328) (1975). See also Restatement (Second) of Torts, § 652D. Only for the purpose of this appeal, in which no issue is made with respect to the jury’s finding in this regard, I assume that the fact that a person has AIDS is offensive to one who learns of it and embarrassing to one who has it.

In this case, plaintiff agreed to the public disclosure of many facts concerning his condition and experience, as this was a talk show and he was subject to unrehearsed questions. But he was to appear anonymously, with his identity a secret from the general public which would be watching and listening. He carved out a zone of privacy which he refused to relinquish and which, as to defendant, he was assured would be protected. That “zone” related not only to what could not be disclosed about him; it''related also to those to whom disclosure was chosen not to be made. The zone of information and the zone of persons informed are both implicated.

The fact that plaintiff had the medical condition AIDS was at first a totally personal and private fact save, it is reasonably inferred, for the medical personnel who discovered it and told him. (Others may have known from them, but there is no evidence of it.) From that point on, he shared the fact with people he selected, for personal purposes and in his own way and time and within his control or within the control of persons he trusted to restrict the information judiciously. He did not broadcast it or authorize others to broadcast it generally, out to members of the public whom he did not know and who did not know him even indirectly.

As to whether the fact is “private, secluded or secret” on the one hand, which it must be in order for disclosure to be recoverable, or “public” on the other hand, which is not protected (Cabaniss, supra at 372), is a matter of degree. There is a continuum from what is purely private (a fact only I know about myself) to what is purely public (a fact broadcast by the media). Disclosing a fact to another person does not make it “public” in the commonly understood sense. The question is, at what point, in the numbers or categories of people, does the exposure of the fact become public? What makes it “public?” Telling one hundred members of a confidential support group may retain its private nature for the purposes of this tort, whereas telling one newspaper reporter would give it a decidedly public nature.

It was a jury question in this case, although at times the question may be determined as a matter of law. It was not waived as a matter of law, because there was evidence of an express non-waiver against general public disclosure to thousands of people in and near plaintiff’s place of residence, plus an agreement to honor it. In addition, there was evidence that plaintiff’s disclosures were limited, discriminate, and not so far-reaching as to be conclusively categorized as “public” even though they were, to an extent, uncontrolled. As stated in Pavesich, “[t]he right of privacy may be waived either expressly or by implication, . . . ; but a waiver authorizes an invasion of the right only to such an extent as is necessarily to be inferred from the purpose for which the waiver is made. A waiver for one purpose and in favor of one person or class does not authorize an invasion for all purposes or by all persons and classes.” Pavesich, supra at 191. As repeated and applied in Doe v. Sears, 245 Ga. 83, 87 (263 SE2d 119) (1980), “the waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver.” Pavesich, supra at 199.

The fact that plaintiff had brought selected people into the protected zone of privacy, or expanded it to include them, did not necessarily erase the zone’s borders. There was evidence that the zone reserved was a fairly confined one, bounded by a relatively small expanse of private or discrete disclosure, as distinct from general public knowledge. There was also evidence that the defendant gave the fact broad public dissemination, beginning with the unidentified in-studio audience which saw him live, and going on to the general viewing public due to the insufficiency of the digitization and the detectable display of his features, clothing, body build, physical mannerisms, and hair color, particularly before digitization was enhanced.

Andrews, Judge,

dissenting.

Plaintiff sued defendant on the basis of invasion of privacy for damages resulting from the disclosure that he has AIDS to persons viewing the broadcast.

Defendant contends that, prior to the broadcast, plaintiff had waived his right to privacy by disclosing he has AIDS to numerous persons. The plaintiff’s invasion of privacy action was based on his claim that defendant publicly disclosed an embarrassing private fact about him — that he has Acquired Immune Deficiency Syndrome (AIDS). “There are at least three necessary elements for recovery under this theory: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.” Cabaniss v. Hipsley, 114 Ga. App. 367, 372 (151 SE2d 496) (1966).

As to the second element, there was undisputed evidence that the fact plaintiff has AIDS had been disclosed to numerous persons prior to the broadcast. The plaintiff testified that the fact he has AIDS had been disclosed by him to nine of his friends; one daughter of a friend; three television employees involved in a previous broadcast; about ten members of an AIDS support group which he attended; six medical personnel including his personal physician and medical support staff; six family members including his mother, father, two sisters, brother-in-law and aunt; an unknown number of persons in local AIDS support organizations; other doctors and medical personnel who had treated him; and three persons with whom he had sexual relations. One of the plaintiff’s sisters, who lived out of state, testified that she disclosed plaintiff has AIDS to three of her bosses at work, several other friends at work, and to a number of personal friends outside of work. She testified it was not something she tried to keep secret, and that the plaintiff left disclosure up to her own good judgment. The plaintiff’s aunt testified that she disclosed plaintiff has AIDS to her mother, her son, and her brother-in-law. One of the plaintiff’s friends testified that he disclosed the plaintiff has AIDS to his three sisters, his brother, and to two of his friends. When questioned about how AZT treatment had affected his AIDS condition prior to the broadcast, the plaintiff testified in general terms that: “I had many young people coming and asking me, you know, why was I doing so well? How was I doing so well? And that’s one of the reasons I went on the show, because I wanted to let them know you can live with AIDS, you don’t have to die with AIDS. ...”

“The right of privacy . . . like every other right that rests in the individual, may be waived by him, or by any one authorized by him, or by any one whom the law empowers to act in his behalf, provided the effect of his waiver will not be such as to bring before the public those matters of a purely private nature which express law or public policy demands shall be kept private. This waiver may be either express or implied, but the existence of the waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver. It may be waived for one purpose and still asserted for another; it may be waived in behalf of one class and retained as against another class; it may be waived as to one individual and retained as against all other persons.” Pavesich v. New England Life Ins. Co., 122 Ga. 190, 191 (8), 199 (50 SE 68) (1905). “[T]o whatever degree and in whatever connection a man’s life has ceased to be private[,] to that extent the protection is to be withdrawn.” (Citation and punctuation omitted.) Cabaniss, supra at 374.

It is undisputed that the plaintiff’s disclosure of his AIDS condition to certain classes of persons such as medical personnel involved with plaintiff’s treatment was done with an expectation that confidentiality is required and that any further disclosure by these persons would be strictly limited to others properly concerned with the plaintiff’s medical treatment. See OCGA § 24-9-47 (disclosure of AIDS confidential information). There is no waiver of the right to privacy when disclosure of a private fact is limited to persons or a class of persons who are required by law or public policy to keep the disclosure private. Pavesich, supra. Moreover, it is possible for a person to only partially waive his right to privacy by, for example, waiving his entire right to privacy as to one fact but retaining it in full as to other private facts or by limiting disclosure of a private fact to a certain class of persons and retaining a privacy right in the same fact as to all others. See Doe v. Sears, 245 Ga. 83, 87 (263 SE2d 119) (1980).

This case deals with the plaintiff’s contention that he limited the disclosure of the private fact that he has AIDS to a certain class or group of persons and retained a right of privacy in that fact as to other persons who saw him identified as an AIDS patient on the broadcast. By definition, the plaintiff’s AIDS condition had been disclosed prior to the broadcast to only a “class” of persons, since not everyone knew he had AIDS. However, the evidence in this case shows that the “class” of persons who knew the plaintiff had AIDS included the plaintiff’s immediate family members, a group of extended family members, members of plaintiff’s AIDS support group who apparently had signed an agreement of confidentiality, friends of the plaintiff and those with whom he was sexually involved, family members and friends of one of plaintiff’s friends, an indefinite number of persons involved with AIDS support organizations, an indefinite number of co-workers and personal friends of one of the plaintiff’s family members, and the “many young people” referred to by the plaintiff who inquired about his ability to live with AIDS during his AZT therapy. While indicating that he had concerns about disclosure of his AIDS condition because of potential adverse public reaction, the plaintiff testified he was not ashamed of the fact that he had AIDS, and that he “told my friends as it came about for whatever reason it came about.” There was evidence the plaintiff told a family member to exercise her own discretion in disclosing his condition.

It need not be decided here to what extent certain immediate family members or others included in the “class” who knew the plaintiff had AIDS, are persons bound by law or public policy to maintain confidentiality. Whether or not the plaintiff expected those he told not to tell others, and whether or not those he told breached a duty not to further disclose his AIDS condition, is not the issue in this case. Here, the plaintiff seeks to recover money damages against the defendant for disclosing his AIDS condition to the broadcast audience based on a claim that his condition was a private, secret or secluded fact, not a public fact. The issue here is whether or not the plaintiff’s secret had been made public prior to the broadcast, regardless of how it was disclosed. The majority focuses on those persons whom the plaintiff personally told he had AIDS and the plaintiff’s expectation that they would not indiscriminately further disclose this fact. This ignores evidence that, rightly or wrongly, those he told, told numerous other persons of the plaintiff’s condition, with the result that, with or without the plaintiff’s permission, an indefinitely large number of persons knew of the plaintiff’s AIDS condition.

The evidence shows that as a result of disclosures made directly by the plaintiff, or subsequent disclosures made by persons he told, a large, indefinite number of persons, not required by law or public policy to maintain confidentiality, knew the plaintiff had AIDS. The ini-' tial and subsequent disclosures set in motion a progression of further disclosures to an expanding “class” of persons. Obviously, the broadcast identified the plaintiff as an AIDS patient to persons outside this “class” who did not previously know. Nevertheless, the number of persons who knew in relation to the number who did not know is not controlling in this case. The crux of the matter is that disclosure of his condition had been made by the plaintiff or others to a sufficient number of persons not bound by law or public policy to maintain privacy, such that the plaintiff voluntarily relinquished, or by disclosures made by others, involuntarily forfeited, any expectation that his AIDS condition was a secret. In other words, although the disclosures were limited to a “class” of persons in the sense that disclosures had not previously been made to all the people who saw the plaintiff identified on the broadcast, the persons who knew prior to the broadcast did not constitute a “class” of persons to whom disclosure was a limited waiver of the right to privacy, since it included a large, indefinite number of persons in which the plaintiff had no legitimate expectation of confidentiality. The numerous disclosures, made or set in motion by the plaintiff, introduced the private fact that he has AIDS into the public domain such that he could not have had any reasonable expectation that this fact remained a private matter. There is a point of disclosure beyond which a matter is no longer private in any reasonable sense even though everyone does not know about it. Since that point of public disclosure was clearly reached in the present case prior to the broadcast, I conclude, as a matter of law, that the plaintiff wholly waived a right to privacy in his AIDS condition and retained no right of privacy as to those in the broadcast audience who did not know he had AIDS at the time of the broadcast. See Cummings v. Walsh Constr. Co., 561 FSupp. 872 (S.D. Ga. 1983).

Nevertheless, I conclude the plaintiff has a cause of action in this case apart from a common law claim for invasion of privacy. It is clear that the defendant television station agreed that it would conceal the plaintiff’s identity when he appeared on the broadcast so that his identity as an AIDS patient would not be revealed to viewers who did not know he had AIDS. Even though the defendant had no duty not to violate the plaintiff’s common law right to privacy as to this fact, since none existed, the defendant voluntarily undertook a duty to conceal the plaintiff’s identity as an AIDS patient from disclosure to viewers of the program. “[0]ne who undertakes to do an act or perform a service for another [, and thereby induces reliance,] has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon.” (Citations and punctuation omitted.) McGinty v. Goldens’ Foundry &c. Co., 208 Ga. App. 248, 250 (430 SE2d 185) (1993); Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991); Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 835-836 (331 SE2d 899) (1985). By virtue of the defendant’s undertaking to conceal the plaintiff’s identity, and the plaintiff’s reliance on this undertaking, a duty arose for the defendant to carefully perform this task, the violation of which would support a cause of action for damages similar to those flowing from an invasion of privacy action resulting from the defendant’s failure to perform.

Although the pre-trial order entered in the case states that the plaintiff’s cause of action is based on the tort of invasion of privacy, the plaintiff’s allegations in the pre-trial order, liberally construed, and the evidence on which the case was tried, were sufficient to embrace a tort action based on the above duty assumed by the defendant. Cooper v. Rosser, 232 Ga. 597, 598 (207 SE2d 513) (1974); Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522-523 (428 SE2d 426) (1993). However, the trial judge charged the jury that the case was based solely on the tort of invasion of privacy, and followed with extensive instructions on the law applicable to the tort of invasion of privacy. Although a short charge was given that the defendant had a duty to diligently carry out any promise it made not to reveal the plaintiff’s identity, this instruction was given within the context of the instructions regarding invasion of privacy. Accordingly, this case was submitted to the jury solely on the theory of invasion of privacy, which was inapplicable as a matter of law, since the plaintiff had waived the privacy right he asserted.

The defendant moved for a directed verdict on the invasion of privacy action on grounds other than waiver, and subsequently made a motion for j.n.o.v. based on the grounds previously raised and waiver, which was denied by the trial court. The denial of j.n.o.v. on the waiver issue was enumerated as error on appeal. Grounds asserted in a motion for j.n.o.v. which were not asserted in a motion for directed verdict will not be considered on appeal. OCGA § 9-11-50 (b); Famiglietti v. Brevard Med. Investors, Ltd., 197 Ga. App. 164, 167 (397 SE2d 720) (1990). Nevertheless, in addition to error claimed in the denial of its motion for directed verdict on grounds other than the waiver issue, the defendant also enumerated error in the denial of its motion for a new trial on the basis that the verdict was contrary to law, the evidence and principles of equity and justice. Although there was some evidence upon which the jury might have based a proper verdict on a cause of action alleging the defendant assumed and breached a duty not to disclose the plaintiff’s identity, it is clear in light of the trial court’s charge that the case was not submitted to the jury on the basis of this evidence nor was the verdict based on this cause of action. Rather, it was based on the evidence and law relating to a cause of action for invasion of privacy. Since the verdict was based on the erroneous legal theory of invasion of privacy, the defendant was entitled to a new trial. See England v. Georgia-Florida Co., 198 Ga. App. 704, 705 (402 SE2d 783) (1991); Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 825 (426 SE2d 905) (1992); Bank South Mtg. v. Starr, 208 Ga. App. 19 (429 SE2d 700) (1993) (motion for new trial reaches errors of law and fact contributing to the rendition of the verdict).

I am authorized to state that Presiding Judge McMurray and Presiding Judge Birdsong join in this dissent.

Decided March 18, 1994

Reconsideration denied April 1, 1994.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Howard J. Strickland, Jr., for appellant.

Karen K. Daniels, Cooper & Rumsey, Lawrence A. Cooper, for appellee.

On Motion for Reconsideration.

During the pendency of defendant’s motion for reconsideration, defendant filed a suggestion of Buddy Worth’s death, and plaintiff voluntarily substituted Barbara Kubach, Buddy Worth’s legal representative. Kubach is hereby substituted as a party to this appeal. Thus, the style of this appeal has changed. Apart from this modification, our opinion remains the same and defendant’s motion for reconsideration is denied.

       Even if we accept defendant’s estimate of approximately 60 individuals, this number is relatively small in relation to the television viewing public in the Macon area.

       Defendant suggests that in Lowe, as in this case, the plaintiff was not involved in a criminal incident or investigation, and the trial court’s denial of the publisher’s motion for summary judgment was nonetheless reversed there. However, the plaintiff in Lowe, while not directly involved in a criminal investigation, was a prisoner in an institution under investigation; and the fact of his incarceration (the “disclosure” of which was the subject of his lawsuit) was already a matter of public record. Here, plaintiff is not even indirectly involved in a criminal investigation, and the fact of his disease was not a matter of public record prior to this broadcast.

        Cox Broadcasting Corp., supra at 494, points out that the commentary to the Restatement limits the tort to instances where the publicity is of facts not already made public.

       That first element is undisputed here in that the disclosure that plaintiff has AIDS took place by means of a television broadcast to the general viewing public within the broadcast area. As to the third element, the parties do not raise the issue, and it is assumed for present purposes that public disclosure that the plaintiff has AIDS would be “offensive and objectionable to a reasonable man of ordinary sensibilities.” Cabaniss, supra at 372.


author: Andrews, Judge. McMurray, Presiding Judge, Beasley, Presiding Judge,

text:
    A93A1770.
    THE STATE v. DEAN.
    (442 SE2d 830)
   Andrews, Judge.

The State appeals the trial court’s grant of State Senator Dean’s plea in bar to charges of making a false writing, OCGA § 16-10-20. We affirm.

The underlying facts of this dispute are not contested. In 1987, the Georgia Department of Community Affairs and the Polk County Board of Commissioners entered into an agreement by which the Department agreed to a grant of $20,000 to the County. The County agreed to “conduct conceptual planning, feasibility studies, and cost benefit analysis of possible improvements to a County-wide water and sewer system.” Initially, $10,000 was dispensed, with the remainder due upon “receipt of certification by the County that the project has been completed.”

Prior to 1987, the Department and its grantees had believed that the use of grant money for actual construction was legal. In 1987, the Attorney General opined that such monies could only be used for “planning.” Therefore, the Department, according to Commissioner Higdon, began to restructure their grant programs around “planning.”

On May 3, 1989, McElwee, the county manager, sent a letter to Higdon stating that “[t]he improvements of the Polk County water and sewer system have been completed, and we are requesting the final payment of $10,000.” A copy was noted as having been sent to Senator Dean, who represented Polk County and the City of Rock-mart in Polk County.

Grants were also being made by the Department to other political subdivisions located in Senator Dean’s district during this period of time, including Rockmart.

At the hearing on the plea in bar, Dean presented the testimony of Deputy Attorney General Hobbs concerning the genesis of the dispute between the Department and Dean which resulted in the “Full Release” at issue. Hobbs testified that “My recollection is that there was an audit done by the City of Rockmart [in 1991] and that a review of grants received by the Department of Community Affairs by the City of Rockmart was the subject of that audit, and not Polk County, Paulding County, and the other local governments. ... I feel pretty confident that the audit that brought rise to the issues that were dealt with with respect to that release was an audit done for the City of Rockmart.” (Emphasis supplied.)

The audit determined that, although none of the grant money was misappropriated by anyone for their personal use, some grant money had gone for public or “publicly beneficial” programs other than those for which it was intended. A letter was sent by the Department to the City of Rockmart, its mayor, its city manager, and Senator Dean, demanding repayment of a total of $53,700. Hobbs acknowledged that the State had no evidence that Dean personally benefitted from any grant to any political subdivision in his district, including those to Rockmart and Polk County.

As a result of the demand letter, Dean and the others obtained counsel and negotiated a settlement with the Department of Community Affairs, represented by Hobbs, pursuant to which Dean agreed to pay $15,000. That money was paid on March 22, 1992 and has not been returned.

Sometime after December 1991, prior to the return of the indictment at issue on December 22, 1992, and in conjunction with Dean’s payment of the $15,000, a document entitled “FULL RELEASE” was signed by Commissioner Higdon for the “Department of Community Affairs, an Agency of State Government of the State of Georgia.” Deputy Attorney General Hobbs negotiated the language of the release on behalf of the Department and signed the release as a witness.

Included in that release are the following paragraphs.

“On December 6,1991, the Department of Community Affairs, an agency of State Government of the State of Georgia (DCA) mailed to [Dean], the City of Rockmart, and [the mayor and city manager of Rockmart], a certain letter stating, among other things, that [the Releasees] owed DCA the sum of at least [$53,700] as a result of certain claims being made by DCA, said claims being more particularly set forth in the letter. . . .

“It is the intention of this FULL RELEASE to compromise, settle and forever end all possible claims and issues and to end any and all potential litigation between and amongst DCA and RELEASEES, with respect to any dealings whatsoever by, between or among DCA and RELEASEES prior to the date of this FULL RELEASE. This FULL RELEASE is intended to encompass, but is not limited to, any and all such claims, whether based on federal or state law, whether arising by action of DCA, any of its agents or affiliates, arising from any alleged claim, either criminal, civil, tortious, contractual or upon any other legal or equitable theory- of recovery whatsoever which DCA now claims, which could in any manner be asserted by it or which may hereafter accrue or otherwise be acquired, on account of, or arising out of any matter or occurrence among the parties prior to date of this FULL RELEASE.” (Emphasis supplied.)

No copy of the demand letter was included in the record below, as pointed out by the dissent. Both parties, however, by the terms of the release, which is in evidence, acknowledge the sending and receipt of the letter and that it precipitated the negotiations and release. Therefore, its existence, if not its exact content, is properly considered by this court.

On December 22, 1992, a special presentment, reflecting on its face that it was prepared by Attorney General Bowers and the Fulton County District Attorney, was returned by the grand jury, charging Dean with making a false writing, specifically, the letter of May 3, 1989, signed by McElwee and copied to Dean. The falsity alleged was that there was “no water and sewer system owned by Polk County, and Polk County had not spent the first $10,000 ... for development of a water and sewer system.”

1. The plea in bar was made and sustained by the trial court. The State’s opposition to the plea was based on the contention that, before the State could be prohibited from a future prosecution of a criminal defendant, “a document must contain a description of the crime or transactions in which the individual is excused from prosecution, and court approval is required of the agreement to forego the prosecution. State v. Hanson, 249 Ga. 739, 744 (295 SE2d 297) (1982).”

That case contains a thorough discussion of the evolution of OCGA § 24-9-28, the Witness Immunity Act, as well as the differences in “transactional” and “use” immunity when compared to “the exercise of prosecutorial discretion.” The latter involves the discretion of a prosecutor exercised in deciding which defendants to prosecute and is involved here.

As held in Hanson, a prosecutor has the power to forego prosecution as long as the promise contains a “description of the crimes or ‘transactions’ ” in regard to which an individual is excused from prosecution, and the promise is approved by the court. The second prong has been fulfilled here because the court’s order granting the plea in bar specifically “approved” the agreement.

While acknowledging that the DCA made all the grants at issue, both those which precipitated the audit letter and those which are the subject of the indictment, the State argues that the apparently all encompassing language of the “Full Release” did not amount to an adequate description of the transaction for purposes of binding the State under Hanson as to the Polk County grants. The State does not dispute that an agreement was bargained for and reached, compare Lee v. King, 263 Ga. 116, 117 (2) (428 SE2d 326) (1993), only that it included the Polk County grants.

The trial court determined as a matter of fact from the testimony as well as from the four corners of the document itself that the intent of the parties to the Full Release was to settle all matters, civil and criminal, between the State of Georgia and Dean relating to all DCA grants, including the Polk County one, and we find no legal error in her conclusion. Even in Hanson, when the agreement was found to be beyond the authority of the prosecutor because it amounted to blanket amnesty for any and all violations in his jurisdiction before September 8, 1980, the Supreme Court concluded that “[t]he parties made a bargain,” and Hanson was entitled to its benefit as to the prosecution which he sought to quash.

This case is also distinguishable factually from Hanson in that, there, an arrest had already occurred and a warrant had been issued, although no indictment had yet been presented to the grand jury. These charges were dismissed in exchange for the letter. As Hanson states, “our statutes are silent as to the authority of the prosecutor to dismiss criminal charges prior to indictment.” Hanson, supra at 743 (2).

Here, there was no criminal charge pending, only the knowledge that public monies allocated for one purpose had been expended for another and an attempt to resolve all matters, civil and criminal, which had occurred between Dean and the DCA before the date of the signing of the release. While DCA may not have been authorized to resolve potential criminal exposure, the Attorney General of this State is so authorized. Ga. Const. 1983, Art. V, Sec. III, Par. IV; Brown v. State, 177 Ga. App. 284, 292 (7) (339 SE2d 332) (1985) (discussing the Attorney General’s dual roles as prosecutor and legal ad-visor to the State or its agencies which he represents in a civil capacity).

Without question, DCA was one of the victims of any alleged criminal activity and its commissioner, when asked if the release discharged Dean from any criminal liability, stated “[t] hat’s what it says.”

Since DCA was represented by the Attorney General in the matter of the DCA grant investigation and release and since this same Attorney General, as constitutionally authorized to do, initiated the prosecution, it would seem incongruous if this matter could not be settled by agreement between the agency/victim represented by the Attorney General when a “private” settlement of a criminal matter may occur between “private parties,” the victim and the perpetrator. See Goolsby v. Bush, 53 Ga. 353 (1874); Childs v. State, 118 Ga. App. 706 (165 SE2d 577) (1968).

In any event, the arguments presented by both dissents as to whether or not the Attorney General and the victim agency could simultaneously settle both a civil dispute between an agency victim (DCA) and, at the same time, resolve by declining to prosecute any criminal violations against society’s interest was not argued below. To so hold now would be to accept the premise that the “wrong for any reason” rule applies.

2. Even assuming that there had not been technical compliance with the mandates of Hanson, the concept of equitable immunity was relied upon by Dean and seems particularly applicable in this situation. Rowe v. Griffin, 676 F2d 524, 526 (11th Cir. 1982); Commonwealth v. Ginn, 587 A2d 314 (Sup. Court Penn. 1990). The concept has been previously acknowledged by Georgia courts in the discussion in Hanson of United States v. Ford, 99 U. S. 594 (25 LE 399) (1878) and “an equitable right to executive clemency.”

3. The remaining arguments made here were not made below and will not be considered here for the first time. Peters v. State, 206 Ga. App. 143, 145 (424 SE2d 372) (1992).

Judgment affirmed. Birdsong,

P. J., Cooper and Johnson, JJ., concur. Smith, J., concurs in the judgment only. McMurray, P. J., Beasley, P. J., and Blackburn, J., dissent. Pope, C. J., disqualified.

McMurray, Presiding Judge,

dissenting.

The release upon which appellee’s plea in bar is predicated does not satisfy the requirement of State v. Hanson, 249 Ga. 739, 744 (2) (295 SE2d 297) that “a valid promise to forgo prosecution based on prosecutorial discretion . . . must . . . contain a description of the crimes or transactions in regard to which an individual is excused from prosecution.” Id. at 744. It is beyond dispute that the release appellee relies upon does not contain on its face any language satisfying this requirement as there is no reference to any specific crime, to the Polk County grants, or to any misrepresentation in regard to the Polk County grants. The demand letter referenced in the release was not introduced into evidence before the superior court, where the burden of proof rested upon appellee Dean, and is not part of the record on appeal. Thus, the reference to that letter, the contents of which is unknown to this court or the trial court, cannot be viewed as curing the absence of a description of the crimes as required by the Hanson decision. It follows that appellee Dean did not prove the existence of a valid promise to forgo prosecution.

The analysis applicable to a determination of the extent to which appellee Dean is entitled to the benefit of an invalid promise by the prosecutor is also addressed in Hanson, at 744 (3). The evidence as developed in the case sub judice is similar to that in Hanson in that it shows an overly broad promise beyond the authority of the prosecutor, being in the nature of a blanket amnesty or pardon, and shows that the promisee has performed his part of the bargain.

In Hanson, at 746-747 (3), a prospective requirement of court approval for prosecutorial promises to forgo prosecution was announced predicated in part on this court’s decision of Smith v. State, 74 Ga. App. 777 (41 SE2d 541) and particularly upon certain language from that decision which was quoted with approval in Hanson. This included a statement that: “ ‘the weight of authority upholds the proposition that if such an agreement is made with the prosecuting attorney alone, without the consent or advice of the court, it is of no effect as a protection . . . if he is afterwards placed on trial in violation of that agreement.’ Smith v. State, supra at 785.” Hanson v. State, 249 Ga. 739, 746 (3), supra.

Based upon this language, my conclusion is that any agreement to forgo prosecution will not become binding until approved by the court, that until such approval has been granted the prosecutor may renounce the agreement by any means including commencement of a prosecution of the promisee, and that once the agreement is renounced by the prosecutor the trial court may not approve the defunct agreement. Therefore, in my view the trial court’s purported approval of the release agreement in the case sub judice is void and of no effect.

I further question whether public policy permits the enforcement of an agreement to forgo criminal prosecution in exchange for a payment of money. If the State may agree to forgo prosecution of this misdemeanor offense for a payment of $15,000 then what is the State’s price to forgo prosecution of a felony such as murder.

Hanson deals with a practice of promising to forgo prosecution of one crime in exchange for information or cooperation which will aid in the prosecution of another crime. Often the promisee is induced to waive the protection of constitutional rights, particularly those under the Fifth and Sixth Amendments, or otherwise act to his detriment. The process of forgoing prosecution in exchange for such consideration is approved due to pragmatic recognition of the compromises needed in order to prove and punish certain crimes, such as those where all who may bear useful testimony will be implicated. These factors are entirely absent from the case sub judice. If appropriate, the money may be returned to appellee Dean with no prejudice resulting to him.

Furthermore, I do not agree that the concept of equitable immunity is applicable to the case sub judice. Before this concept becomes relevant there must be a sufficient promise to which the equitable principles may attach. In Georgia, reference to the Hanson decision provides the parameters of such a promise. “In the future, an agreement to forgo prosecution must be in writing, must specifically set forth the transactions to which the promise relates, and must be approved by the court.” Id. at 747. As already noted, two of these parameters were not satisfied in the case sub judice.

Nor is this a case to which the concept of private settlement of a criminal case is applicable. “Because a crime is by definition a public wrong against the State, it is not usually an acceptable defense that the person wronged by a criminal has condoned the offense. . . . Neither repayment of the victim nor settlement between the defendant and victim will constitute a bar to conviction of the offender. Williams v. State, 105 Ga. 606 (2) (31 SE 546); Lowe v. State, 111 Ga. 650, 652 (36 SE 856).” Pratt v. State, 167 Ga. App. 819, 820 (1) (307 SE2d 714). Although the cases of Goolsby v. Bush, 53 Ga. 353 and Childs v. State, 118 Ga. App. 706 (165 SE2d 577), cited by the majority, may present a narrow exception to this general rule, that exception is not applicable to the case sub judice. Not only does the fact that this case proceeds by indictment as opposed to accusation preclude application of this exception (see Pratt v. State, 167 Ga. App. 819, 820, supra), the nature of the crime itself being an offense against the government and thus against the whole of society makes it inappropriate for application of the private settlement concept. See Childs v. State, 118 Ga. App. 706, 708 (3), supra.

Finally, I would construe the release agreement between appellee Dean and the Georgia Department of Community Affairs (hereafter “DCA”) as relating only to civil claims. The Deputy Attorney General who represented DCA was not a party to the agreement, he was merely an attorney representing one of the parties. The document purports to be a full release of any “theory of recovery whatsoever which DC A now claims. ...” The DCA has no responsibility for the prosecution of criminal offenses, therefore there is no rational basis for supposing that it might contract to forgo a criminal prosecution.

Decided March 15, 1994

Reconsideration denied April 1, 1994

Michael J. Bowers, Attorney General, Harrison W. Kohler, Charles M. Richards, Senior Assistant Attorneys General, for appellant.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, George T. Smith, for appellee.

I, therefore, respectfully dissent as I would hold that the superior court erred in attempting to supply its approval under these circumstances and in granting appellee’s plea in bar.

I am authorized to state that Judge Blackburn joins in this dissent.

Beasley, Presiding Judge,

dissenting.

I agree with the other dissent in that it was error to grant appellee’s plea in bar, although I do not concur in all of the analysis. A controlling factor is that the agreement releasing appellee from “any and all such claims . . . either criminal. . .” etc. was not made with the prosecuting attorney who would have the power to exercise prosecutorial discretion in the matter. It was made instead with a state agency head, for that executive agency. He was no more than the potential prosecuting witness and has no “prosecutorial authority” to exercise. Although he could agree not to make a complaint to the district attorney or to the grand jury, he would have to obey a subpoena if the district attorney independently sought an indictment or special presentment. State v. Hanson, 249 Ga. 739 (295 SE2d 297) (1982) and Smith v. State, 74 Ga. App. 777 (41 SE2d 541) (1947), both involve agreements with the district attorney or prosecuting attorney. That is missing here.

       Hobbs was one of three such Deputy Attorneys General. These three served under Executive Assistant Attorney General Michael, who reported to Attorney General Bowers. Hobbs was the deputy who coordinated litigation for the State and its agencies.

       “Immunity” is confined to the protection afforded an individual who has given up a valuable constitutional right and the term “promise to forgo prosecution” is used to describe the exercise of prosecutorial discretion with no constitutional overtones. Hanson, supra at n. 1.


author: Beasley, Presiding Judge. Cooper, Judge,

text:
    A93A1777.
    BAKER et al. v. THE STATE.
    (442 SE2d 815)
   Beasley, Presiding Judge.

Appellants bring this appeal from the trial court’s denial of their motion for discharge and acquittal pursuant to OCGA § 17-7-170.

In February 1991, appellants were indicted for the offenses of aggravated assault and aggravated battery. On April 1, 1991, they filed a “Demand For Trial” which read as follows: “Comes now [defendants], by and through their attorney-at-law, Michael B. Perry, before arraignment and demand a speedy trial.” On February 1, 1993, more than two terms after the demand for speedy trial was filed, appellants filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170. The trial court denied the motion on the ground appellants’ demand could not reasonably be construed as referencing OCGA § 17-7-170 and thus was not sufficient to invoke the extreme sanction of discharge and acquittal provided for by that statute.

It is true that “ ‘[a] demand which merely requests a trial by jury is insufficient; to invoke the extreme sanction of OCGA § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for speedy trial.’ State v. Prestía, 183 Ga. App. 24, 25 (357 SE2d 829) (1987).” Kevinezz v. State, 207 Ga. App. 456, 457 (2) (428 SE2d 366) (1993). No particular form is required “so long as the demand can reasonably be construed as a demand for trial under the provisions of [OCGA § 17-7-170].” State v. Adamczyk, 162 Ga. App. 288, 290 (290 SE2d 149) (1982).

Although appellants’ demand for trial does not specifically reference OCGA § 17-7-170, it does “clearly indicate that it is a demand for speedy trial.” Prestía, supra at 25. In Ferris v. State, 172 Ga. App. 729 (1) (324 SE2d 762) (1984), we found the defendant’s demand which sought a “speed[y] trial of any or all charges” was insufficient to invoke the sanction of acquittal of OCGA § 17-7-170 solely because it did not identify the charges against the defendant by name, date, term of court or case number. Because appellants’ demand for trial both requested a speedy trial and recited the style of the case and the indictment number to which it applied, the demand was sufficient to invoke the provisions of OCGA § 17-7-170 providing for discharge and acquittal. See Ferris, supra at 731.

Dyal v. State, 211 Ga. App. 816 (440 SE2d 716) (1994), is not precedential. Moreover, it is distinguishable because Dyal’s demand was buried in a comprehensive motions document. Baker’s demand was a separate document, specifically denominated. It constituted a clear indication that he invoked the statutory right; it was not equivocal or ambiguous nor could it have been taken for anything else than what it was. Requiring a reference to OCGA § 17-7-170 exalts form over substance.

As to the other prerequisites for discharge and acquittal, the trial court noted in its order denying the motion that both the term during which appellants’ demand was filed and the next succeeding term had expired. Appellants state in their brief that juries were impaneled and qualified to try the case during both of these terms. The State does not dispute this statement in its appellate brief or on motion for reconsideration and essentially appears to concede this fact. Accordingly, pursuant to Court of Appeals Rule 15 (b) (1), appellants’ statement that juries were impaneled and qualified to try the case during both terms is prima facie true. We further note that had juries not been available, there would have been no reason for the trial court to have reached the issue of whether the demand was sufficient in content.

In Scott v. State, 206 Ga. App. 17, 18 (424 SE2d 325) (1992), we held that “[s]ince jurors were impaneled and qualified to try appellant^] during the term in which [their] demand for trial was made and the next succeeding term, and appellants] [were] not tried during either of those terms, it was error to deny [their] motion for discharge and acquittal of the charge[s] against [them].” (Citations and punctuation omitted.)

The court similarly erred in this case.

Judgment reversed.

Birdsong, P. J., Johnson, Blackburn and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Andrews, JJ., dissent.

Cooper, Judge,

dissenting.

In State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982), this court recognized that it had been unduly liberal in its construction of what constitutes a valid demand for speedy trial sufficient to invoke the extreme sanctions of OCGA § 17-7-170. As a result, the full bench held that “a demand for trial will not be considered sufficient to invoke the extreme sanction of [OCGA § 17-7-170] unless it is presented for what it is — a demand to be tried within the next succeeding term of court.” Id. at 289-290. While we noted that no particular form was required, in clear and unequivocal language, this court declared that it would no longer sanction the acquittal of defendants who failed to reference OCGA § 17-7-170 or its provisions. It is a minimal requirement to invoke such an extreme sanction. Somehow the test was expanded in State v. Prestía, 183 Ga. App. 24 (357 SE2d 829) (1987), to find a demand sufficient if it “otherwise clearly indicate[s] that it is a demand for speedy trial.” Id. at 25. Since the inclusion of this language, the cases which have succeeded Prestía bear witness to the evisceration of the rule plainly stated in Adamczyk, and we now find ourselves back where we were before Adamczyk was decided. In my view, requiring mere reference to the statute or its provisions does not constitute imposition of a particular form. In the instant case, mere inclusion of the phrase “speedy trial” is not sufficient, and the trial court was correct in denying appellants’ motion for discharge and acquittal.

I am also concerned about the majority’s reliance on Court of Appeals Rule 15 (b) (1) and representations made by appellants in their appellate brief that juries were impaneled and qualified to try the case during both terms of court. The record is devoid of any such evidence, and I caution that Rule 15 should not be cited in lieu of the long-standing rule that factual allegations made in briefs but unsupported by the record will not be considered on appeal.

Decided March 14, 1994

Reconsideration denied April 1, 1994

Michael B. Perry, for appellants.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Pope, Presiding Judge McMurray and Judge Andrews join in this dissent.