Rhina Saravia v. De Chen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:10-cv-00832-WGC Copies to all parties and the district court/agency. [999125888].. [12-2355]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Rhina Saravia, Rosa Maria Gamez, and Phillip R. Murray
appeal the district court’s 1 order granting summary judgment to
Defendants

in

Appellants

filed

alleged

this

negligence

this

negligence

action

and

of

New

wrongful

seeking

Century

damages
Travel,

death

action.

based

on

the

and

its

Inc.,

employee, De Yue Chen, in connection with a fatal automobile
accident

that

(“Gamez”).
district

resulted

On
court

in

appeal,
erred

the

death

Appellants
in

of

Jose

primarily

granting

Fernando
argue

summary

Gamez

that

judgment

the
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

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Finally,

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Appellants

contend

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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

favorable

to

the

reasonable
nonmoving

inferences

party.

PBM

in

the

light

most

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

entitled to judgment as a matter of law.”

and

the

movant

is

Fed. R. Civ. P.

56(a).
In this diversity action, we apply the substantive law
of Maryland, the forum state.
U.S. 64, 78 (1938).

Erie R.R. Co. v. Tompkins, 304

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).
3

Where the evidence

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shows

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“some

prominent

and

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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.
238,

240

(holding

trial

judge

properly

found

Id. at

contributory

evidence as a matter of law).
After review of the record and the parties’ briefs, we
conclude

that

evidence,

the

district

properly

court,

based

on

that

Gamez

failed

concluded

the

undisputed
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

failure

to

to

walk

exercise

around

due

care

the

vehicle.

proximately

Because

contributed

Gamez’s
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)

negligence.”

to

avert

the

consequences

of

his

original

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.
facts

and

materials

legal
before

We dispense with oral argument because the
contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.

AFFIRMED

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