                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



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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

                                                  3
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

                                              4
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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