Can A Drunk Pedestrian Accident Victim Recover Damages?

Many Atlanta pedestrian accident victims incorrectly believe that they can’t recover damages if they were struck while crossing the road where there was no crosswalk. Pedestrians can, in fact, recover damages in that scenario – as long as they are not 50% (or more) responsible for causing the collision. But, what if the pedestrian was drunk? A drunk pedestrian accident victim can also recover damages in Georgia so long as the vehicle driver that struck them was more negligent than them.

For example, at Graham Scofield Injury Lawyers our Atlanta pedestrian accident lawyers recently settled a truck accident case for the $1,000,000 policy limits even though our drunk client was struck while she was walking down the middle of a four-lane road. We won that case because we proved that the truck driver was more negligent than our client. Specifically, we demonstrated that the truck driver:

Drove too fast for conditions
Failed to keep a proper lookout
Failed to yield to our client, a pedestrian
Drove fatigued
Failed to maintain his traffic lane
Exceeded the 14 consecutive hour driving window

Additionally, the truck driver failed to remain at the collision scene even though he knew, or should have known that he struck our client.

A recent Georgia Court of Appeals case (Hart v. Phung et al., No. A22A0528 (Ga. App. 2022) addressed several of the same issues that were at stake in our case, chiefly, whether a driver should have seen the drunk pedestrian and could have avoided hitting her through the exercise of ordinary care. The Georgia Court of Appeals ruled in favor of that injured pedestrian. What follows is a discussion of that drunk pedestrian accident case.

Case Facts

In Hart v. Phung, defendant Thanh Phung struck plaintiff Ashley Hart while Ms. Hart was crossing a four-lane highway separated by a grassy median. Ms. Hart was not in or near a pedestrian crosswalk. Phung, an Uber driver, was on his way to pick up a rider.

Ms. Hart’s Testimony

Prior to the accident, Ms. Hart and several friends were at a bar, where Ms. Hart drank several drinks and became drunk. Ms. Hart left the bar on foot with a male companion. One of Ms. Hart’s friends testified that Ms. Hart was “intoxicated,” but she “was still able to walk, talk and function.” Ms. Hart’s male companion was also drunk.

Ms. Hart suffered a severe brain injury as a result of the collision. She also fractured her pelvic bone and her left leg. Ms. Hart testified that there was little she remembered from that evening aside from the name of her male companion. She didn’t know where she was going when she was struck or how the collision occurred. Her male companion apparently never testified. Thus, Mr. Phung, the Uber driver, was the only eyewitness that testified about how the collision occurred.

Mr. Phung’s Testimony

Mr. Phung described the area where the accident occurred as “commercial” with “some…light[]” emanating from a bank on the other side of the divided highway where he struck Ms. Hart. The posted speed limit was 45 mph. Mr. Phung contended that he wasn’t speeding.

Mr. Phung described this drunk pedestrian 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.”

Mr. Phung added 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. Mr. Phung also acknowledged that he could have remained in the right lane and stopped in time to avoid hitting the man.

Mr. Phung testified that Ms. 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.” Mr. Phung believed that Ms. Hart “was lying [in] the left lane” she was struck. While Mr. Phung 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.”

GSP Trooper Testimony

The Georgia State Patrol trooper that responded to the collision made the following observations:

The accident occurred in a dark, unlit area of the highway
There were no streetlights or crosswalks in the area
Ms. Hart crossed the highway where there wasn’t a crosswalk
Ms. Hart was wearing a black shirt and blue jean shorts

The trooper concluded that Ms. Hart caused the collision. However, he admittedly did not have any qualifications, training, or expertise to render that opinion.

Accident Reconstructionist Testimony

Ms. Hart hired an expert, Scott Smith, to reconstruct and analyze the collision. Mr. Smith observed that:

The roadway is not well lit, but there is adequate ambient light coming from the multitude of commercial properties in the general area.
Although Ms. Hart was wearing a dark top, she also wore light colored shorts, white shoes with reflectors on them, and she had light colored skin.
Mr. Phung admitted that he could have voided the first pedestrian by just stopping. Instead, he swerved lanes and struck Ms. Hart.

Mr. Smith concluded that if “Mr. Phung had been more aware and more observant he could have and should have seen Ms. Hart and been able to stop his vehicle in time to avoid striking her.” The fundamental component of his opinion was that “Mr. Phung had the opportunity to see [Ms. Hart].” He explained that based on Mr. Phung’s speed, Ms. Hart’s appearance, the ambient lighting in the area, and the light emitting from his headlamps, he should have been able to see her and stop safely.

Trial Court Decision

The trial court judge excluded the testimony of Ms. Hart’s expert. The judge concluded that Mr. Smith’s “opinion on Ms. Hart’s visibility to … Mr. Phung is based upon the same factors a jury would use to determine whether Ms. Hart was visible. There was no expertise, no scientific study, no scientific method in reaching the conclusions reached by Mr. Smith, thus these opinions are merely speculative.”

Later, the trial judge dismissed Ms. Hart’s case because she “had failed to show that ‘Phung was negligent or failed to exercise due diligence.’”

Georgia Court of Appeals Decision

The Georgia Court of Appeals affirmed the trial court’s decision in part, and reversed it in part.

For instance, the Court agreed that Ms. Hart’s expert could not offer an opinion about the illumination of Ms. Hart based upon her clothing and the ambient lighting if he did not conduct any test to measure the ambient lighting at the scene. However, the Court permitted Ms. Hart’s expert to offer several other opinions, such as his testimony about the amount of feet traveled per second at 40 mph, as well as the auto manufacturing standard for visibility distance with high and low beam settings.

The Georgia Court of Appeals also reversed the trial court’s decision to dismiss Ms. Hart’s case. It determined that there were genuine issues of material fact “with regard to whether Mr. Phung should have seen Ms. Hart and could have avoided hitting her through the exercise of ordinary care.” That decision enables Ms. Hart to have her case resolved by a jury which is a great victory for her and her legal team.

Our Atlanta Pedestrian Accident Lawyers Can Help You

At Graham Scofield Injury Lawyers, our Atlanta car accident lawyers have successfully represented many Uber and Lyft accident victims, as well as pedestrian accident victims. We may be able to help you even if you were injured in a drunk pedestrian accident.

We’re not afraid to litigate a challenging liability case with significant damages like Ms. Hart’s case. Call us today at (404) 939-9470 to discuss your pedestrian accident case. Also, you may fill-out our online contact form to schedule a free case review with our team. If you’ve got questions, we’ve got the answers.