L. Cary v. US

Filing 920090831

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2192

L. ANN CARY, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, District Judge. (4:07-cv-00112-RBS-JEB)

Submitted:

August 18, 2009

Decided:

August 31, 2009

Before MICHAEL, SHEDD, and AGEE, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion.

Joseph F. Verser, Leonard C. Heath, Jr., JONES, BLECHMAN, WOLTZ & KELLY, PC, Newport News, Virginia, for Appellant. Lawrence R. Leonard, Managing Assistant United States Attorney, Kent P. Porter, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: L. Ann Cary appeals the district court's entry of

judgment for the Government after a bench trial on her action under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 26712680 (2006). On appeal, Cary asserts that the district court

erred in determining that Sandra Ambrose-Shem was not negligent in operating her vehicle, and that Cary was contributorily

negligent, thus barring her recovery.

We agree with Cary and

reverse the judgment of the district court. Because Cary brought this action under the FTCA, her claims are governed by the substantive law of the state where the alleged negligence occurred. See 28 U.S.C. § 1346(b)(1)

(2006) (liability under the FTCA to be determined "in accordance with the law of the place where the act or omission occurred"). Thus, Virginia law regarding negligence, including contributory negligence, controls. Under Fed. R. Civ. P. 52(a)(6), a trial

judge's findings of fact should not be disturbed unless clearly erroneous. Here, however, the material facts were undisputed.

Though both parties presented testimonial evidence as to the circumstances challenged or of the collision, the neither evidence party's of the evidence other.

contradicted

Generally, the findings of trial courts are not afforded the finality customary to basic factual findings under Rule 52(a) where the findings are based on undisputed facts. 2 See Hicks v.

United States, 368 F.2d 626, 630-31 (4th Cir. 1966); see also Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 241 n.1 (4th Cir. 1997). Instead, where "the ultimate conclusion to be

drawn from the basic facts, i.e., the existence or absence of negligence, is actually a question of law," such a conclusion "is freely reviewable on appeal." Hicks, 368 F.2d at 631.

Therefore, our standard of review is de novo.

I.

Negligence

In Virginia, "[a] driver of a motor vehicle has a duty to use ordinary care to maintain a proper lookout."

Litchford v. Hancock, 352 S.E.2d 335, 336-37 (Va. 1987). The duty to keep a proper lookout requires a driver to use ordinary care to look in all directions for vehicles that would affect her driving, to see what a reasonable person would have seen, and to react as a reasonable person would have acted to avoid a collision under the circumstances. Burroughs v. Keffer, 630 S.E.2d 297, 300-01 (Va. 2006) (internal quotation marks omitted). Ordinary or reasonable care is "that

degree of care which an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury to

another."

Perlin v. Chappell, 96 S.E.2d 805, 808 (Va. 1957) Drivers have a care to

(internal quotation marks and citation omitted). "duty to obey traffic laws and exercise

reasonable

protect the rights of others," and have a right to presume other

3

drivers will do the same.

Citizens Rapid Transit Co. v. O'Hara, Under Virginia Law, "[e]very

128 S.E.2d 270, 272-73 (Va. 1962).

driver who intends to . . . turn . . . from a direct line shall first see that such movement can be made safely." § 46.2-848 (2005). Va. Code Ann.

Additionally, "[t]he driver of a vehicle,

intending to turn left within an intersection . . . shall yield the right-of-way to any vehicle approaching from the opposite direction if it is so close as to constitute a hazard." Code Ann. § 46.2-825 (2005). Contrary to the rulings of the district court, the uncontested evidence in the record shows that Shem's failure to obey traffic laws or exercise reasonable care to protect the rights of others indicates that she was negligent in causing the collision with Cary's car. An ordinarily prudent person would Va.

not blindly enter an intersection in which she could not be certain she would not strike or be struck by oncoming traffic. Despite the district court's emphasis that Shem "took care to slowly inch into her turn," the fact remains that Shem

unnecessarily placed herself and others in a position of peril by entering a lane obscured by a large vehicle. The district

court overlooked the fact that the object obstructing Shem's view was not a stationary and permanent one -- the truck

obscuring the lane would eventually turn.

Instead of simply

waiting for the truck to turn, thus giving Shem a clear view of 4

any oncoming traffic, Shem waited for less than a minute and then eased her way into the intersection. view of the oncoming that lanes was revealed no That her "`slice' of vehicles" in does not the

demonstrate intersection.

Shem

reasonable

entering

Instead, before beginning her turn, Virginia law

required that Shem "first see that such a movement can be made safely." Va. Code Ann. § 46.2-848. By her own admission, Shem

could not see the southbound traffic due to the obstruction of the truck; therefore, she had no idea whether her turn could be made safely and her decision to turn under such hazardous

circumstances was negligent as a matter of law. Though the Government contends that the "trial court's determination based upon assessments of witness credibility is deserving of the highest degree of appellate deference," this proposition is simply inapplicable based on the record in this case. case, No as credibility the determinations were necessary the in this were

circumstances

surrounding

accident

undisputed.

It was uncontested that the roadway was obstructed

by the truck and that the accident occurred when Shem pulled into the lane traveled by Cary. Cary does not dispute Shem's

testimony that Shem waited nearly a minute before slowly inching out into the intersection. Instead, the dispute arises over

whether Shem's behavior was reasonable, an issue that, due to the uncontested facts, was a 5 question of law that is not

entitled to deference. the applicable care as a

Accordingly, because Shem failed to obey traffic the law, laws and of the failed to exercise Shem was

Virginia to

reasonable negligent

protect of

rights and

others, district

matter

court's

determination to the contrary was in error.

II. Contributory Negligence Similarly, the district court erred in finding that Cary was contributorially negligent and thus barred from

recovery.

"Contributory negligence is an affirmative defense

that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances. The essential Burroughs, citation

concept of contributory negligence is carelessness." 630 S.E.2d at 300 (internal quotation marks and

omitted). Here, the district court erred by finding that Cary was negligent in entering the intersection. Though the district

court asserts that Cary failed to "keep a proper lookout of the conditions ahead of or beside her," such an assertion is belied by the record. At the intersection of Canon Boulevard and Blue

Crab Road, individuals traveling along or turning left onto Blue Crab Road were required to yield the right-of-way to those

driving through the intersection on Canon Boulevard. 6

Va. Code

Ann. § 46.2-825.

Though a statute giving one driver approaching

an intersection the right-of-way over another does not relieve the first driver of his duty to exercise reasonable care when approaching the intersection, see Hogan v. Miller, 157 S.E. 540, 544 (Va. 1931), the first driver is entitled to presume that other drivers will obey the law and exercise reasonable care to avoid collisions, see Citizens Rapid Transit Co., 128 S.E.2d at 272-73. The district court's determination that Cary was

negligent in failing to "slow or stop when she approached the intersection" is inconsistent with Virginia precedent. Though

Cary was required to maintain a proper lookout when approaching the intersection, such a lookout only requires her to "see what a reasonable person would have seen, and to react as a

reasonable person would have acted to avoid a collision under the circumstances." Burroughs, 630 S.E.2d at 300-01. A

reasonable driver would not have seen or known that a car in the opposite Instead, lane a was about to illegally turn in front of her. have

reasonable

individual

would,

like

Cary,

proceeded through the intersection at a moderate rate of speed, presuming that other drivers would obey traffic laws and drive in a reasonable manner. Contrary to the district court's

assertion, Virginia law does not impose a duty on drivers whose lanes enjoy the right-of-way to 7 slow down or stop prior to

entering an intersection. in finding contributory

Accordingly, the district court erred negligence by Cary and barring her

recovery. Therefore, court as to we reverse and the judgment this of the for district further

liability

remand

action

proceedings consistent with this opinion. argument as the facts and legal

We dispense with oral are adequately

contentions

presented in the materials before the court and argument would not aid the decisional process.

REVERSED AND REMANDED

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