Can an Intoxicated Pedestrian Recover if an Uber Driver Hits Her in the Middle of a Highway?

As Atlanta personal injury lawyers we regularly handle accidents involving Uber and Lyft drivers.  Our law firm represents both injured drivers who are hurt by Uber drivers who cause the crash as well as Uber drivers who are injured by other drivers.  In a recent personal injury case, the plaintiff appealed a trial court’s decision to dismiss her case against an Uber driver and Uber Technologies.


The plaintiff was struck by a car driven by the defendant who was driving for Uber as she crossed a four-lane highway separated by a grass median. She wasn’t in or near a pedestrian crosswalk. At the time of the accident, shortly after 2:00 a.m., the Uber driver was on his way to pick up a fare.

Before the accident, the plaintiff and several of her friends were hanging out at a bar.  There, she drank several drinks to the point that she became intoxicated.  (Our Atlanta personal injury law firm also handles dram shop cases which are situations where bars can be liable if they overserve a customer and knowingly allow the drunk customer to drive.)  A female friend with her that evening said she told the plaintiff to get an Uber if she didn’t want to go home with her. The plaintiff told her friend to leave, stating that she’d called an Uber. When her friend returned from the restroom, the plaintiff and the male companion she’d met that evening were gone. The friend assumed they’d already gotten the Uber and had left.

She testified it was out of character for the plaintiff to leave a bar with a man she’d just met. She said that she thought that “alcohol played a role in her trusting this guy.” She explained that the man with whom the plaintiff had left lived in a nearby apartment across the highway from the bar where they’d been drinking, and she heard him offer to walk to his apartment with him. While she described the plaintiff as “intoxicated,” she was could walk, talk, and function. The plaintiff’s male companion was also intoxicated.

The plaintiff stated she could remember little other than the name of her companion that evening. She couldn’t recall her destination when she was struck by the Uber or how the accident happened. She suffered a brain injury requiring a cranioplasty to allow room for her brain to swell, as well as a broken pelvic bone and a compound fracture of her left tibia. Because of the accident, she suffered from frequent seizures and is unable to work.

The Uber driver testified that he couldn’t provide any information about his destination at the time of the accident and that no data exists on the Uber app because the trip didn’t happen. The driver described the area where the accident occurred as commercial, with some light shining from a bank on the other side of the divided highway from where he struck the plaintiff. 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.”

The Uber driver said 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 also testified that the plaintiff “was definitely not standing or walking. And that he was 100% sure.

He said, “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.”

The driver thought the plaintiff “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.”

According to the Uber driver, the plaintiff was lying unconscious on her back, “a little bit slanted with her head toward the middle median” after the impact. He testified that the police report was incorrect because it stated that the man was in the median rather than in the right lane when he was waving his arms.

The Trooper’s Report

The plaintiff hired a personal injury lawyer–not our law firm–and she filed suit.  The defendants moved to dismiss the case because there was no evidence that the Uber driver was negligent and that the plaintiff assumed the risk of her injury and failed to exercise ordinary care for her safety. In support of their motion, the defendants relied upon the depositions of the Uber driver, the plaintiff, the female friend at the bar with the plaintiff, the police report, and an affidavit from the state trooper who completed the report.

The trooper’s affidavit included his fact observations:

  • The accident occurred in a dark, unlit area of the highway;
  • There were no street lights or crosswalks in the area;
  • The plaintiff improperly crossed the highway without a crosswalk;
  • The plaintiff was wearing a black shirt and blue jean shorts; and
  • He didn’t find any contributing factors to the Uber driver.

The trooper’s affidavit also included the following opinions or conclusions:

  • The plaintiff ran or entered into the path of the Uber driver’s vehicle, causing the accident;
  • The plaintiff’s dark clothing made it impossible to see her in the dark, unlit roadway; and
  • “I do not believe [the Uber driver] caused, in any way, this accident.”

The trial court granted summary judgment in favor of the defendants based upon its conclusion that the plaintiff failed to show that the Uber driver was negligent or failed to exercise due diligence.

The Court of Appeals Reverses

The plaintiff contended that the trial court erred by granting summary judgment in favor of the Uber defendants because genuine issues of material fact existed concerning whether the Uber driver should have seen the plaintiff and could have avoided hitting her through the exercise of ordinary care.

Judge Trenton Brown, III wrote that questions of negligence, diligence, contributory negligence, and proximate cause are matters for the jury. The court shouldn’t take the place of the jury in solving them, except in plain and indisputable cases.

In this case, the Uber driver admitted in one portion of his deposition that he “saw them” when he was traveling in the right lane and that he could have stopped in time to avoid hitting the man if he had remained in the right lane.

Judge Brown held that based upon this testimony alone, a genuine issue of fact existed as to whether the Uber driver saw the plaintiff and could have stopped in time.

While the Uber driver also testified that he never saw the plaintiff before hitting her, his self-conflicting testimony, for which he has offered no reasonable explanation, must be construed against him.

As a result, the Supreme Court reversed the trial court’s grant of summary judgment in favor of the Uber Driver and Uber. Hart v. Phung, 2022 Ga. App. LEXIS 313 (Ga. App. June 21, 2022).

Speak to an Experienced Atlanta Uber Accident Attorney

An accident involving a rideshare company like Uber means the defendant has the resources to prolong the litigation, frustrate the plaintiff, and force him or her into a less than optimal settlement. However, with an experienced Atlanta Uber accident attorney, you can be confident that you will receive exceptional representation and set yourself up for the the outcome possible. You want to have a lawyer who has the education, experience, resources and grit on your side.

Please contact any of our experienced personal injury lawyers for a free consultation. You can contact our law firm, Tobin Injury Law, at almost any hour of the day. Defense lawyers respond 24/7 to accidents; so do we.  We invite you to contact an Atlanta accident attorney at 404-JUSTICE (404-587-8423) or by reaching out via our online contact form.