UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2355
RHINA SARAVIA; ROSA MARIA GAMEZ; PHILLIP R. MURRAY, as
Personal Representative of the Estate of Decedent, Jose
Fernando Gamez,
Plaintiffs – Appellants,
v.
DE YUE CHEN; NEW CENTURY TRAVEL, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. William Connelly, Magistrate Judge.
(8:10-cv-00832-WGC)
Submitted: May 31, 2013 Decided: June 10, 2013
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Victor E. Long, Patrick M. Regan, REGAN ZAMBRI LONG & BERTRAM,
Washington, D.C., for Appellants. Warren D. Stephens, DECARO,
DORAN, SICILIANO, GALLAGHER & DEBLASIS, LLP, Bowie, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rhina Saravia, Rosa Maria Gamez, and Phillip R. Murray
appeal the district court’s 1 order granting summary judgment to
Defendants in this negligence and wrongful death action.
Appellants filed this action seeking damages based on the
alleged negligence of New Century Travel, Inc., and its
employee, De Yue Chen, in connection with a fatal automobile
accident that resulted in the death of Jose Fernando Gamez
(“Gamez”). On appeal, Appellants primarily argue that the
district court erred in granting summary judgment upon
concluding that Gamez’s contributory negligence barred recovery. 2
Specifically, Saravia contends: (1) the district court did not
draw all reasonable inferences in her favor; (2) under Maryland
case law, the issue of contributory negligence is for a jury to
decide; (3) the district court erred in concluding that Gamez’s
violation of multiple state statutes established his
contributory negligence; and (4) the district court failed to
apply a presumption of reasonableness to Gamez’s conduct.
1
The parties here consented to the jurisdiction of the
magistrate judge, in accordance with 28 U.S.C. § 636(c) (2006).
2
Saravia also complains that the district court, in
assessing Gamez’s contributory negligence, erred by assuming
that Gamez’s truck was stopped in middle rather than the far
right portion of the travel lane. Because this issue is
irrelevant to our analysis, we do not address it.
2
Finally, Appellants contend that the doctrine of last clear
chance vitiates the effect of any contributory negligence by
Gamez. Finding no error, we affirm.
We review a district court’s grant of summary judgment
de novo, drawing reasonable inferences in the light most
favorable to the nonmoving party. PBM Prods., LLC v. Mead
Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011). Summary
judgment may be granted where “the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
In this diversity action, we apply the substantive law
of Maryland, the forum state. Erie R.R. Co. v. Tompkins, 304
U.S. 64, 78 (1938). Under Maryland law, a plaintiff who is
contributorily negligent is barred from recovery in tort. See
Batten v. Michel, 292 A.2d 707, 711-12 (Md. Ct. Spec. App. 1972)
(“Contributory negligence, if present, defeats recovery because
it is the proximate cause of the accident.”). Contributory
negligence is defined as “the failure to observe ordinary care
for one’s own safety. It is the doing of something that a
person of ordinary prudence would not do, or the failure to do
something that a person of ordinary prudence would do, under the
circumstances.” Menish v. Pollinger Co., 356 A.2d 233, 236 (Md.
1976) (internal quotation marks omitted). Where the evidence
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shows “some prominent and decisive act which directly
contributed to the accident and which was of such a character as
to leave no room for difference of opinion thereon by reasonable
minds,” contributory negligence is not a jury issue. Id. at
238, 240 (holding trial judge properly found contributory
evidence as a matter of law).
After review of the record and the parties’ briefs, we
conclude that the district court, based on the undisputed
evidence, properly concluded that Gamez failed to observe
ordinary care for his own safety when he alighted from his truck
in a travel lane of a major highway, at night, in an unlit area,
and proceeded to walk around the vehicle. Because Gamez’s
failure to exercise due care proximately contributed to the
accident, the district court properly concluded that Defendants
were entitled to summary judgment.
Further, we find that the last clear chance doctrine
is inapplicable in this case. Under Maryland law, the doctrine
of last clear chance allows a contributorily negligent plaintiff
to recover damages from a negligent defendant when “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 original
negligence.” Wooldridge v. Price, 966 A.2d 955, 961 (Md. Ct.
Spec. App. 2009). But “[w]here the negligence of the plaintiff
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and defendant are concurrent 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).
Here, assuming negligent conduct on Chen’s part,
Appellants have failed to identify a new event that would have
given Chen a fresh opportunity to avert the consequences of any
negligence on his part and Gamez’s contributory negligence.
Gamez was still in the road next to his truck when the bus
struck him, and thus his contributory negligence was ongoing.
Finally, any negligence on Chen’s part and Gamez’s contributory
negligence were simultaneous and not sequential, thus providing
no fresh opportunity for Chen to avoid the accident. Therefore,
the district court properly found the last clear chance doctrine
inapplicable.
Accordingly, we affirm the district court’s grant of
summary judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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