Phung v. Hart

1

THANH TAN PHUNG et al. v. ASHLEY HART.

No. S22C1238

Supreme Court of Georgia

May 2, 2023

Court of Appeals Case No. A22A0528

The Honorable Supreme Court met pursuant to adjournment. The following order was passed:

The Supreme Court today denied the petition for certiorari in this case. All the Justices concur.

BETHEL, Justice, concurring.

Because the standard for certiorari review requires more than mere error correction, I concur in the Court's denial of certiorari in this case. But I write separately to express my grave concern that the Court of Appeals' mischaracterization of the record here likely resulted in the erroneous disposition of an enumeration.

This personal injury case involves claims for negligence stemming from an automobile collision with a pedestrian. Ashley Hart the plaintiff in the underlying suit, was in a lane of traffic on a highway and not in a designated crosswalk or at a marked intersection. One of the critical considerations in the case is the question of whether the driver of the automobile, Thanh Tan Phung, saw Hart prior to the collision. There appears to be no question that Phung saw a second pedestrian - a man waving in the right lane. The trial court granted summary judgment to Phung, concluding that Hart had failed to provide evidence that "Phung was negligent or failed to exercise due diligence." The Court of Appeals upon review of the record, reversed and in doing so determined that Phung's deposition created a genuine issue of material fact concerning whether Phung saw Hart prior to the impact and could have stopped in time. The Court of Appeals relied on Phung's testimony that he could have stopped in time to avoid hitting the other pedestrian that he avoided - a man waving in the right lane - by switching to the left lane, and his statement that "I was in the right lane when I saw them." (Emphasis supplied.) See Hart v. Phung, 364 Ga.App. 399, 401, 407 (876 S.E.2d 1) (2022).

But, in context, Phung's use of the plural "them" cannot reasonably be read to indicate that Phung saw Hart prior to the impact. In his deposition, Phung describes seeing "someone waving right in my lane," causing him to "merge into the left lane" where he then ran over "something" a few seconds later. There is no apparent dispute that the person waving in the lane was the other pedestrian and most certainly was not Hart. The "something" Phung struck, sadly, appears to have...