---
title: THANH TAN PHUNG v. ASHLEY HART
collection: opinions
id: S22C1238
cite_as: THANH TAN PHUNG v. ASHLEY HART, 316 Ga. 361 (2023)
canonical_url: https://georgiacommons.org/opinions/S22C1238
md_url: https://georgiacommons.org/opinions/S22C1238.md
text_url: https://georgiacommons.org/opinions/S22C1238/text
source_url: https://www.courtlistener.com/opinion/10680114/thanh-tan-phung-v-ashley-hart/
date: 2023-05-02
status: published
corpus_version: opinions-2026-09-14
license: Public record of the Supreme Court of Georgia, via CourtListener and the court's own website; see about.md
publisher: Georgia Commons, an independent project of Georgia Civic Data. Not the State of Georgia. Not legal advice.
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omitted: opinion extras
omitted_chars: 1992
omitted_url: https://georgiacommons.org/opinions/S22C1238.md?full=1
docket: S22C1238
citation: 316 Ga. 361
court: Supreme Court of Georgia
case_type: civil
authoring_justice: Per Curiam
disposition: Petition for certiorari denied
vote: All the Justices concur
word_count: 725
date_filed_source: courtlistener
record_source: courtlistener
legal_areas:
  - torts
  - civil procedure
upstream_id: "10680114"
summaries_model: claude-sonnet-5
---

# THANH TAN PHUNG v. ASHLEY HART

Supreme Court of Georgia, docket S22C1238, filed 2023-05-02, 316 Ga. 361.

## Opinion

316 Ga. 361 FINAL COPY

S22C1238. PHUNG et al. v. HART.

ORDER OF THE COURT.

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 SE2d 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 been Hart, who was possibly lying down in the left lane of Highway 92. Phung unequivocally and consistently states numerous times throughout his deposition that he never saw Hart in the lane before the impact. And it is Plaintiff’s counsel that repeatedly referred to the man waving in the plural — mentioning “their clothes, their face, their hands,” and asking “how far were you from the person that was in your lane [i.e., the man waving] when you first noticed them do you think?” Phung and Hart’s counsel discuss the man waving, and then after some back-and-forth, Phung states “I was in the right lane when I saw them.” (Emphasis supplied.) That Phung similarly responds in the plural when discussing the man waving in the lane does not change the meaning of his response that is clear from context. Phung was indicating when he saw the waving man, not that he saw both the waving man and Hart. The Court of Appeals’ use of this response, out of context and in isolation, to overturn the trial court’s grant of summary judgment appears to be clearly erroneous.

Nevertheless, because the opinion of the Court of Appeals does not incorrectly state the law but merely incorrectly applies it to the record in a way not apparent on the face of the opinion, I agree that the issue here lacks gravity and the case is not one of great import to the public. Thus, I concur in the denial of certiorari, though I admonish the Court of Appeals to exercise greater care in its review of the records it reviews.

I am authorized to state that Chief Justice Boggs and Justices Warren and LaGrua join in this concurrence.

Ordered May 2, 2023 — Reconsideration denied May 31,

2023.

Certiorari to the Court of Appeals of Georgia — 364 Ga. App. 399.

McGrew Miller Bomar & Bagley, Wayne D. McGrew III, for appellant.

Joseph H. King, Jr.; Hait & Kuhn, Alexander G. Hait, for appellee.

## Summaries written by Georgia Commons

The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary.

The Supreme Court of Georgia declined to review a Court of Appeals ruling that revived a pedestrian's personal injury lawsuit, even though a concurring Justice said the appellate court had likely misread key deposition testimony.

### Plain-language summary

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.

### Holding, as summarized

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.

### Disposition

Petition for certiorari denied. All the Justices concur.

### Why it matters

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.

> The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (1,992 characters) are at https://georgiacommons.org/opinions/S22C1238.md?full=1