                                UNPUBLISHED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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. §§ 2671-

2680 (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          of     the    collision,      neither     party’s       evidence

challenged        or     contradicted         the    evidence     of     the     other.

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.                       See Hicks v.

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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)

(internal quotation marks and citation omitted).                       Drivers have a

“duty   to    obey    traffic    laws     and   exercise    reasonable         care   to

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


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drivers will do the same.           Citizens Rapid Transit Co. v. O’Hara,

128 S.E.2d 270, 272-73 (Va. 1962).                Under Virginia Law, “[e]very

driver who intends to . . . turn . . . from a direct line shall

first see that such movement can be made safely.”                   Va. Code Ann.

§ 46.2-848 (2005).            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.”                          Va.

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

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

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any oncoming traffic, Shem waited for less than a minute and

then eased her way into the intersection.                            That her “‘slice’ of

view    of    the       oncoming    lanes    revealed          no    vehicles”        does    not

demonstrate         that      Shem     was           reasonable          in     entering      the

intersection.           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.        No   credibility        determinations           were        necessary     in   this

case,    as       the     circumstances          surrounding             the    accident     were

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       question       of    law    that   is   not

                                                 5
entitled to deference.                Accordingly, because Shem failed to obey

the    applicable             Virginia   traffic     laws     and    failed    to     exercise

reasonable      care           to   protect   the     rights    of    others,        Shem   was

negligent       as        a     matter   of    law,    and     the     district        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

concept of contributory negligence is carelessness.”                                Burroughs,

630    S.E.2d        at       300   (internal       quotation       marks     and     citation

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.                                 Va. Code

                                                6
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      lane     was    about    to    illegally     turn      in    front    of     her.

Instead,       a     reasonable        individual      would,        like      Cary,       have

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    slow   down      or    stop    prior        to

                                              7
entering an intersection.           Accordingly, the district court erred

in   finding      contributory     negligence       by   Cary   and   barring   her

recovery.

             Therefore,      we   reverse    the    judgment     of   the   district

court   as     to    liability    and   remand      this    action    for   further

proceedings consistent with this opinion.                  We dispense with oral

argument     as     the   facts   and   legal      contentions    are   adequately

presented in the materials before the court and argument would

not aid the decisional process.



                                                           REVERSED AND REMANDED




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