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Maryland District Court Finds Last Clear Chance Inapplicable Where Pedestrian’s Contributory Negligence was Concurrent with Motorist’s Negligence in Fatal Accident

Saravia v. De Yue Chen
United States District Court for the District of Maryland, No. WGC-10-832

by Jhanelle Graham, Law Clerk
Semmes, Bowen & Semmes (

In Saravia v. De Yue Chen, Plaintiffs Rhina Saravia, Rosa Maria Gamez and Phillip R. Murray, Esquire (as Personal Representative of the Estate of Decedent, Jose Fernando Gamez) (collectively, “Plaintiffs”) brought an action against De Yue Chen and New Century Travel, Inc. (hereinafter the “Defendants”) alleging negligence and wrongful death as a result of a fatal accident on February 10, 2009. Magistrate Judge William Connelly dismissed Plaintiffs’ claim upon determining that (1) Mr. Gamez’s contributory negligence was a proximate cause of his death, and (2) under Maryland law, contributory negligence is a total bar to the Plaintiffs’ recovery.

On February 10, 2009, the decedent, Jose Fernando Gamez, was driving a Nissan Frontier pickup truck that contained a propane grill he recently purchased, and which was secured with yellow rope in the bed of Mr. Gamez’s truck. While driving along the Baltimore Washington Parkway, in the southbound direction, the rope became loose and the propane grill bounced from inside the bed of the pickup truck, hitting the road and leaving two (2) parallel gouges in the pavement of the right lane. As Mr. Gamez continued driving, three (3) metal pieces of the propane grill fell on the pavement landing in both the right and left southbound lanes.

Sometime thereafter, about 7:30 p.m., Mr. Gamez stopped his pickup truck in the right southbound lane. The two (2) street lights were not functioning in the area where Mr. Gamez stopped. Mr. Gamez turned on his hazard lights and then apparently stepped out of his pickup truck, walking to the rear passenger side. Zerihun Diriba was driving a Nissan Sentra in the right southbound lane along the Baltimore Washington Parkway when he saw a vehicle in the distance. At first, Diriba assumed the vehicle was moving at a slow speed but soon realized that the vehicle was at a complete halt. According to Mr. Diriba, the pickup truck's hazard lights were on and the pickup “was just parked in the middle of the right lane.” Mr. Diriba noticed in his rearview mirror that the bus behind him had not adjusted its speed and was rapidly approaching Mr. Diriba's car from the rear, but the flow of traffic prevented Mr. Diriba from moving into the left southbound lane. As a defensive measure, Mr. Diriba moved his car slightly left within his lane, behind the pickup truck, and then stopped. Nonetheless, as Mr. Diriba feared, the bus collided with his vehicle, striking the right rear passenger side of Mr. Diriba’s car and pushing Mr. Diriba into Mr. Gamez before the bus turned toward the right shoulder.

Another motorist, Thomas Peters, was also operating a Volkswagen Golf in the right southbound lane of the Baltimore Washington Parkway. Between the time Mr. Peters realized the two vehicles in front of him were stopped and the time he swerved to the right, Mr. Peters did not see anyone on the roadway. The bus collided with the rear of Mr. Peters’s car, propelled the car forward, and the Volkswagen Golf came to a stop about 460 feet south of the area of impact. De Yue Chen was operating the bus—a Van Hool Tour Bus on behalf of his employer, New Century Travel, Inc., carrying passengers along the Baltimore Washington Parkway traveling southbound. Mr. Chen was familiar with this route, having traveled this route on fifty (50) or more occasions. Mr. Chen claims that he did not observe any vehicles slowing down; rather, he saw vehicles stopped on the highway without any warning. Between the time that Mr. Chen first observed that the cars had stopped in front of the bus and the time the bus collided with those vehicles, Mr. Chen allegedly never saw a pedestrian in the roadway. Mr. Gamez was killed as a result of the collision.

The Plaintiffs alleged negligence and wrongful death, and the Defendants moved for summary judgment on grounds of contributory negligence. Subject matter jurisdiction was based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a), because: (1) Plaintiff Rhina Saravia and Plaintiff Rosa Maria Gamez were citizens of the District of Columbia and Phillip R. Murray, Esquire, the Personal Representative of the Decedent's Estate, resided in Maryland; (2) Defendant De Yue Chen resided in New York; and (3) Defendant New Century Travel, Inc. was a Pennsylvania corporation licensed to conduct business in the District of Columbia. The amount in controversy exceeded $75,000.

The district court began by acknowledging that, in a diversity action, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) required the application of Maryland substantive law. Under Maryland law, in pleading a cause of action for negligence, “a plaintiff must allege with certainty and definiteness, facts and circumstances sufficient to set forth (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty and (c) injury proximately resulting from that breach.” Pace v. State, 425 Md. 145, 154, 38 A.3d 418, 423 (2012) (internal citations omitted). Moreover, a defendant has the burden of establishing the contributory negligence defense. The Court of Appeals of Maryland has adopted the Restatement (Second) of Torts, Section 463’s definition of contributory negligence, which states that “[c]ontributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm.” Id.

With respect to Defendants’ contention that Mr. Gamez was contributorily negligent in this case, the court pointed to Maryland Code, Transportation Section 24–106(c), which states that “[a] vehicle with any load may not be driven on any highway unless the load and any covering on the load are fastened securely to prevent the load or covering from becoming loose or detached or from in any way endangering other users of the highway.” Id. The district court found it undisputed that Mr. Gamez’s failure to fasten securely the propane grill to his pickup truck started the sequence of events which ultimately resulted in his death. Additionally, to prove that Mr. Gamez was negligent per se, the court required that the Defendants establish that “the plaintiff was within the class of persons sought to be protected, and the harm suffered was of a kind which the drafters intended the statute to prevent . . . .” Brown v. Dermer, 357 Md. 344, 359, 744 A.2d 47, 55 (2000). Here, the court held that Mr. Gamez was within the class of persons (motorists) to be protected and the ultimate harm suffered was the kind of harm the Maryland General Assembly intended to prevent. Because the court found a statutory violation of the Maryland Code, Transportation Section 24–106(c) by Mr. Gamez as one of the causes proximately resulting in his death, the court held Mr. Gamez was negligent per se. Additional evidence of Mr. Gamez’s negligence per se was (1) his decision to park on the highway; and (2) his decision to alight from a stopped vehicle to walk to the rear of his pickup truck, in violation of the Maryland transportation laws.

Alternatively, Plaintiffs contended that even if Mr. Gamez was contributorily negligent, Defendant Chen had a fresh opportunity to avoid the accident but failed to do so; thus, Mr. Chen's negligence overcame Mr. Gamez’s contributory negligence. In Maryland, the last clear chance doctrine has been used as follows: “The mere negligence or want of ordinary caution on the part of the deceased . . . would not disentitle the plaintiff to recover . . . if the defendant might, by the exercise of care on its part, have avoided the consequences of the neglect or carelessness of the deceased.” Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 450, 456 A.2d 894, 898 (1983) (internal citations omitted). In the instant case, the district court pointed out that no one saw Mr. Gamez prior to the accident; thus, there was no fresh opportunity to avoid hitting Mr. Gamez. Moreover, the area in which Mr. Gamez’s truck was parked was not illuminated, thereby reducing the other drivers’ perceptions. When the bus that Defendant Chen was operating struck Mr. Gamez, the Nissan Sentra, and the Volkswagen Golf, Mr. Gamez’s contributory negligence was ongoing. Therefore, the district court held that Defendant Chen had no “fresh opportunity” to avoid the consequences of his assumed negligence and Mr. Gamez’s contributory negligence. The court stated that, although tragic, the circumstances in this case did not comport with the required elements of the last clear chance doctrine. Therefore, the district court found that there were no genuine issues as to any material fact, and that the Defendants were entitled to judgment as a matter of law.