UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANITA RENEE WILLIAMS,
Plaintiff-Appellant,
v.
CLOVERLEAF ENTERPRISES,
INCORPORATED,
Defendant-Appellee, No. 01-2013
and
UNITED STATES OF AMERICA; DAWN
GIBBS,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Jillyn K. Schulz, Magistrate Judge.
(CA-97-2476-PJM)
Submitted: May 31, 2002
Decided: June 17, 2002
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mark D. Meyer, Robert Joel Zakroff, ZAKROFF & ASSOCIATES,
P.C., Bethesda, Maryland, for Appellant. Gerald W. Ueckermann, Jr.,
2 WILLIAMS v. CLOVERLEAF ENTERPRISES
O’MALLEY, MILES, NYLEN & GILMORE, P.A., Calverton, Mary-
land, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anita Renee Williams appeals the magistrate judge’s order entering
judgment against her in this diversity state law tort action.1 A violent
confrontation between Williams and Dawn Gibbs in one of the park-
ing lots of Rosecroft Raceway in Fort Washington, Maryland resulted
in this civil suit which ultimately proceeded to trial against the owner
of the Raceway. In her primary allegation of negligence, Williams
alleged that employees of Cloverleaf Enterprises, Inc. stood idly by
while Gibbs attacked her in three separate assaults. At trial, the evi-
dence suggested that over a span of ten to twenty minutes, Gibbs
assaulted Williams first with a small dumbbell, then with her fists and
feet, and finally with a steak knife. The final attack resulted in a deep
cut along Williams’ right upper arm.
After remand from this court on the issue of summary judgment,
the district court referred the action to a magistrate judge for all pur-
poses. At trial, the evidence essentially followed the information
adduced through discovery. Ultimately, Williams presented evidence
that she observed Cloverleaf employees near her location prior to the
beginning of the altercation. Another witness for Williams testified
that two track employees watched the altercation.
Despite the fact that the altercation lasted between ten and twenty
minutes, no Cloverleaf employees aided Williams or attempted to
1
The parties tried this case before a magistrate judge exercising juris-
diction with their consent. 28 U.S.C. § 636(c) (1994).
WILLIAMS v. CLOVERLEAF ENTERPRISES 3
intervene. Furthermore, there was no evidence that any of the Clover-
leaf employees contacted the off-duty police officers working at the
racetrack despite the presence of telephones within the tellers’ booths
near the site of the incident for that purpose. The off-duty police offi-
cer who eventually responded after the end of the altercation could
not recall how he was alerted to the situation, but testified that a
patron might have informed him of the situation.
After the conclusion of the evidence, the magistrate judge allowed
an instruction on the Maryland doctrine of "last clear chance" over
Cloverleaf’s objection. The instruction read that "A plaintiff who is
contributorily negligent may nevertheless recover if the plaintiff is in
a situation of helpless peril and thereafter the defendant had a fresh
opportunity of which the defendant was aware to avoid injury to the
plaintiff and failed to do so." Notwithstanding the inclusion of the
instruction, the magistrate judge declined to amend the verdict form
at Williams’ request to include a special interrogatory to the jury on
the "last clear chance." After deliberation, the jury indicated on the
verdict form that Cloverleaf was negligent with respect to the alterca-
tion between Williams and Gibbs. The jury also found that Williams
was contributorily negligent in her conduct. After that finding, the
verdict form instructed the jury to stop without awarding damages.
Consequently, no damages were awarded.
In her appeal, Williams suggests that the magistrate judge erred in
declining to amend the verdict form to include a "last clear chance"
question with respect to Cloverleaf’s negligence.2 The question of
whether to send a special interrogatory to the jury on this issue is
within the discretion of the trial judge. Klien v. Sears Roebuck & Co.,
773 F.2d 1421, 1426-27 (4th Cir. 1985); Tights, Inc. v. Acme-
McCrary Corp., 541 F.2d 1047, 1060 (4th Cir. 1976). In considering
2
As we noted in the prior appeal in this case, Williams v. Cloverleaf
Enterprises, Inc., No. 99-1106 (4th Cir. Feb. 7, 2000), because the source
of the federal court’s jurisdiction over the state law tort action was the
parties’ diversity of citizenship, 28 U.S.C. § 1332 (1994), the rule of Erie
R.R. v. Thompkins, 304 U.S. 64, 78 (1938), requires the application of the
law of Maryland, the forum state, to questions of substantive law. On
procedural issues, federal law governs. Hanna v. Plumer, 380 U.S. 460,
465 (1965).
4 WILLIAMS v. CLOVERLEAF ENTERPRISES
the adequacy of the verdict form, the reviewing court considers sev-
eral factors, including "whether the interrogatories adequately pre-
sented the contested issues to the jury when read as a whole and in
conjunction with the general charge, whether submission of the issues
to the jury was fair, and whether the ultimate questions of fact were
clearly submitted to the jury." Klien, 773 F.2d at 1427 (citing Tights,
Inc., 541 F.2d at 1060). Special interrogatories "may be as detailed as
counsel and the district court wish to make them, and the particular
verbiage used is of no great consequence so long as the questions
were framed so that the jury knows what it is deciding." Cunningham
v. M-G Transp. Servs., Inc., 527 F.2d 760, 762 n.1 (4th Cir. 1975).
Williams contends that because the magistrate judge considered the
"last clear chance" interrogatory on the verdict form superfluous in
light of the contributory negligence question, the magistrate judge
relied on an erroneous interpretation of Maryland tort law to fashion
the special interrogatories. Under Maryland law, the doctrine of last
clear chance permits a contributorily negligent plaintiff to recover
damages from a negligent defendant if each of the following elements
is satisfied: (i) the defendant is negligent; (ii) the plaintiff is contribu-
torily negligent; and (iii) the plaintiff makes "a showing of something
new or sequential, which affords the defendant a fresh opportunity (of
which he fails to avail himself) to avert the consequences of his origi-
nal negligence." Liscombe v. Potomac Edison Co., 495 A.2d 838, 847
(Md. 1985) (citations omitted). The magistrate judge, in declining to
include the additional question, stated that the jury would indicate that
Williams was entitled to recover under the "last clear chance" theory
by finding that she was not contributorily negligent. Because Mary-
land law requires a contributorily negligent plaintiff in order to invoke
the "last clear chance" doctrine, the magistrate judge relied on an
erroneous legal standard in denying Williams’ request. Consequently,
the refusal to amend the interrogatory was an abuse of the magistrate
judge’s discretion.
Under Maryland law, error in jury instruction is subject to harmless
error analysis. Ralph Pritts & Sons, Inc. v. Butler, 403 A.2d 830, 837
(Md. App. 1979). Consequently, if Williams could not have recovered
under the "last clear chance" doctrine, any error in the interrogatories
omitting the theory of recovery could be held harmless and the verdict
WILLIAMS v. CLOVERLEAF ENTERPRISES 5
3
affirmed on that basis. As a result, Williams was required to make
"a showing of something new or sequential, which affords the defen-
dant a fresh opportunity (of which he fails to avail himself) to avert
the consequences of his original negligence." Liscombe, 495 A.2d at
847. "Where the negligence of the plaintiff and the defendant are con-
current in time or where the lack of a fresh opportunity is caused by
the defendant’s preexisting negligence, the defendant has no last clear
chance," and the doctrine is inapplicable. Kassama v. Magat, 792
A.2d 1102, 1114 n.12 (Md. 2002). After thorough consideration of
the testimony and theories of the case as presented to the court in the
joint appendix and the parties’ briefs, we are convinced that Williams
failed to demonstrate that the "last clear chance" doctrine was applica-
ble to Cloverleaf’s negligence relative to the altercation. As a result,
we conclude that the magistrate judge’s error was harmless.
Accordingly, the magistrate judge’s judgment is hereby affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3
Williams’ unsupported contention that Cloverleaf Enterprises waived
its right to argue that the magistrate judge’s error was harmless by failing
to appeal the district court’s ruling on the jury instruction is unconvinc-
ing in light of Cloverleaf’s status as the prevailing party in the district
court.