THANH TAN PHUNG v. ASHLEY HART

Ashley Hart was struck by a car driven by Thanh Tan Phung while she was in a traffic lane on a Georgia highway, not at a crosswalk. A trial court granted Phung summary judgment, finding no evidence he was negligent. The Court of Appeals of Georgia reversed, relying on Phung's deposition testimony that he saw 'them' and could have avoided hitting Hart, treating that as proof he saw her before the crash. Phung and Hart asked the Supreme Court of Georgia to review that reversal through a petition for certiorari. The court denied the petition, meaning the Court of Appeals' decision stands and the case returns to the trial court. Justice Bethel wrote separately to say the Court of Appeals appeared to have misread the record: Phung's use of 'them' referred to a different pedestrian he saw waving, not to Hart, whom he said he never saw before impact. Bethel still agreed review was not warranted because the mistake was one of applying facts, not misstating the law.

The Supreme Court of Georgia denied certiorari because, even if the Court of Appeals misapplied the record in reversing summary judgment, the error did not misstate the law or raise an issue of great public importance, which is required for certiorari review.

The ruling lets the reversed decision stand, meaning Hart's negligence lawsuit against Phung will proceed toward trial rather than ending in summary judgment. It also signals that the Supreme Court of Georgia will not correct fact-specific errors by the Court of Appeals unless they raise a broader legal issue.

Petition for certiorari denied

1. The court explained that certiorari review, the discretionary process by which the Supreme Court of Georgia chooses which Court of Appeals decisions to reconsider, requires more than showing the lower court made a mistake; the issue must involve incorrect legal principles or matters of great public importance.
2. Justice Bethel examined the deposition testimony the Court of Appeals relied on, in which driver Phung said 'I was in the right lane when I saw them,' and concluded in context that 'them' referred to a different pedestrian waving in the road, not to Hart.
3. Because Phung repeatedly testified he never saw Hart before hitting her, Bethel reasoned the Court of Appeals had mischaracterized the record when it used that quote to find a factual dispute over whether Phung saw Hart in time to stop.
4. Despite this apparent error in applying the facts, the court concluded that because the Court of Appeals' opinion did not state the wrong legal rule, and the mistake was not obvious from the opinion's face, the case did not meet the standard for certiorari review.
5. The court therefore denied the petition, leaving the Court of Appeals' reversal of summary judgment in place, while urging the Court of Appeals to review deposition records more carefully in future cases.

• personal injury lawsuit
• pedestrian collision
• summary judgment
• certiorari review
• deposition testimony