Hart v. Phung

364 Ga.App. 399

876 S.E.2d 1

HART

v.PHUNG et al.

A22A0528

Court of Appeals of Georgia.

June 21, 2022

Hait & Kuhn, Alexander Gray Hait, Woodstock; Joseph H. King Jr., for Appellant.

Hawkins Parnell & Young, Kimberly D. Stevens, Atlanta, Jeffrey Scott Adams ; McGrew Miller Bomar & Bagley, Wayne D. McGrew III, Andrew Michael Bagley, for Appellee.

Brown, Judge.

In this personal injury case, Ashley Hart appeals from the trial court's grant of summary judgment to Thanh Tan Phung, Uber Technologies (GA), Inc., and Rasier, LLC (collectively "the defendants"). She contends that the trial court erred in excluding the testimony of her expert and in granting summary judgment. For the reasons explained below, we affirm one aspect of the trial court's ruling with regard to the expert opinion testimony and reverse others. We also reverse the grant of summary judgment to the defendants.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing a grant or denial of summary judgment, we owe no deference to the trial court's ruling and we review de novo both the evidence and the trial court's legal conclusions. Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. In doing so, we bear in mind that the party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.

(Citation and punctuation omitted.) Chybicki v. Coffee Regional Med. Center , 361 Ga. App. 654, 655, 865 S.E.2d 259 (2021). So viewed, the record shows that Hart was struck by a car driven by Phung while crossing a four-lane highway separated by a grass median. She was not in or near a pedestrian crosswalk. At the time of the accident, which was shortly after 2:00 a.m., Phung, an Uber driver, was on his way to pick up a fare.

Before the accident, Hart and several friends were at a bar, where Hart drank several drinks and became intoxicated. A female friend who was with her that evening deposed that she told Hart to get an Uber if she did not want to accept a ride home. Hart instructed her friend to leave, stating that she had called an Uber. When her friend returned from the restroom, Hart and the male companion she had met that evening were gone, so the friend thought "they had already gotten the Uber and they had left." She testified that it was out of character for Hart to leave a bar with a man she had just met and that she thought that "alcohol played a role in her trusting this guy." She explained that the man with whom Hart had left lived in a nearby apartment across the highway from the bar where they had been drinking, and she heard him offer for Hart to walk to his apartment with him. While she described Hart as "intoxicated," Hart "was still able to walk, talk, and function." Hart's male companion was also intoxicated.

While Hart deposed that her companion's name that evening was Troy Phillips,¹ she remembered little else from the evening of the accident, including where she was going when she was struck by Phung's vehicle or how the accident occurred. She was wearing her work uniform, which consisted of a black shirt and blue jean shorts. She suffered a brain injury requiring a cranioplasty to allow room for her brain to swell, as well as a broken pelvic bone and compound fracture of her left tibia. Following the accident, she suffers from frequent seizures and cannot work.

Phung testified that he could not provide any information about his destination at the time of the accident; no data exists on the Uber app because the trip "did not occur." He described the area where the accident occurred as "commercial" with "some ... light[ ]" emanating from a bank on the other side of the divided highway from where he struck Hart. The posted speed limit was 45 mph and he was "definitely" driving below that limit at about 40 mph. He described the accident as follows:

I was going in the right lane [when] I suddenly noticed someone waving right in my lane. And I merge into the left lane and just normal reaction on what you see in front of you. And I heard some noise, but ... I definitely did not see anyone else at the time. So from the noise, I realized that it looks like I might have hit something. So I pulled over to the right side as soon as I could.

He testified that his lane change was "a pretty smooth motion" rather than a "jerk motion." He did not remember "hitting the brake," explaining that he had "no reason to" do so. He stated that he was in the right lane when he saw a man in the middle of the right lane frantically waving. He acknowledged that he could have remained in the right lane and stopped in time to avoid hitting the man.

He testified that Hart "was definitely not standing or walking. That, I'm 100 percent sure. Because I know that I saw the guy in front of me. And I definitely would have seen her if she was standing or walking or making any motion." He believes that Hart "was lying [in] the left lane" when she was struck. While he repeatedly stated that he only saw the man, at one point in his deposition, he stated, "I was in the right lane when I saw them. " (Emphasis supplied.)

According to Phung, Hart was lying unconscious on her back "a little bit slanted with her head toward the middle median" after the impact. The narrative of the police report for the incident states:

Vehicle #1 was traveling west on GA 92 just east of Trickum Road in the left lane. Pedestrian #1 was attempting to improperly cross the westbound traffic lanes. Pedestrian #1 ran into the path of vehicle #1. Vehicle #1 struck pedestrian #1 in the left westbound traffic lane with the undercarriage of vehicle #1. Pedestrian #1 came to rest in the left traffic lane at the area of impact. Vehicle #1 came to rest in the right turning lane approximately 119.0 feet from the area of impact. Pedestrian #2 stated that he had just crossed the westbound lanes and was standing in the grass median of GA 92. The driver of vehicle #1 stated that he saw a man standing in the median waving his arms but he never saw anyone else. The driver of vehicle #1 stated that he heard a thump and pulled over to see what he hit. Pedestrian #1 was wearing a black shirt and blue jean shorts which would make her almost impossible to see in the dark unlit roadway. The driver of vehicle #1's attention was drawn to the man standing in the median waving his arms. The area of impact was in the westbound traffic lane and was determined by pedestrian #1's shoe, cell phone, keys and blood in the roadway.

Phung deposed that the police report is incorrect because it states that the man was in the median rather than the right lane when he was waving his arms.

Hart filed suit against the defendants, and after some discovery was completed, the defendants moved for summary judgment in their favor, asserting that there was no evidence that Phung was negligent and that Hart assumed the risk of her injury and failed to exercise ordinary care for her own safety. In support of their motion, the defendants relied upon the depositions of Phung, Hart, the female friend who was at the bar with Hart, the police report, and an affidavit from the state trooper who completed the report.

The trooper stated in his affidavit that the police report attached to his affidavit "accurately reflects [his] investigation of the accident scene." Other than stating that he worked for the Georgia State Patrol on the date of the accident, the trooper recounted no qualifications, training, or expertise to render expert opinions. The trooper's affidavit includes the following fact observations by the trooper: the accident occurred in a dark, unlit area of the highway; there were no street lights or crosswalks in the area; Hart improperly crossed the highway without a crosswalk; Hart was wearing a black shirt and blue jean shorts; and he "did not find any contributing factors on Mr. Phung." It also included the following opinions or conclusions: "Hart ran or entered into the path of Mr. Phung's vehicle, causing the accident"; Hart's dark clothing "[made] it impossible to see her in the dark, unlit roadway"; and "I do not believe [Phung] caused, in any way, this accident."

Hart opposed the motion for summary judgment, in part, by submitting an expert affidavit from Scott B. Smith, who specializes in collision reconstruction and who served on the Georgia State Patrol Specialized Collision Reconstruction Team for 18 years, with 13 of those years in the fatality unit. Smith, who was retained after the summary judgment motion was filed "to conduct a reconstruction and analyze the collision," opined the following in his affidavit with regard to the accident at issue:

While the roadway itself is not well lit there is adequate ambient light coming from the multitude of commercial properties including a Publix shopping center and a Walmart shopping center and three banking facilities in the general area to provide some lighting to the roadway itself. Furthermore, while the victim [was] in fact wearing a dark top, she is a female with white legs, light colored shorts and reflectors on the white shoes that would have and are designed to give notice to the presence of a person. The Defendant himself in his depositions testified that he could have avoided hitting the first pedestrian by just stopping. Instead, he swerved lanes and subsequently struck the victim.... [I]t is my opinion that had the Defendant been more aware and more observant he could have and should have seen the second pedestrian and been able to stop his vehicle in time to avoid striking the victim.

Smith averred that his opinion was based upon his review of photographs of the scene, "body cam video from the collision[,]" the incident report, his examination of the scene and the roadway, and Phung's deposition.

The...