L. Ann Cary v. United States of America

UNPUBLISHED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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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
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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
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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
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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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