LAST CLEAR CHANCE IN MARYLAND PERSONAL INJURY CASES

Last Clear Chance in Maryland personal injury law has changed a bit over the years. For those unfamiliar with the doctrine it represents those unique situations where both plaintiff and defendant are negligent. In Maryland plaintiff's contributor negligence is a complete bar to any recovery. Maryland is a contributory negligence state. As such the negligent plaintiff can still recover if he can prove the defendant had the last clear chance to change the course of events and failed to do so. At one time in Maryland the plaintiff only needed to prove the defendant had the final chance to avoid the accident. Now however, the plaintiff must prove the defendant committed a primary act of negligence and a subsequent act of negligence. Each act of negligence must be sequential and the defendant's final act of negligence must have been a fresh new opportunity to avoid the injury to a helpless plaintiff. One of the more informative cases on this issue is Court of Special Appeals of Maryland Preston CARTER
v. SENATE MASONRY, INCORPORATED.

Background: Commercial plumber brought negligence action against forklift operator's employer after plumber was injured at a construction site. The Circuit Court, Prince George's County, Thomas P. Smith, J., granted employer's post-trial motion for judgment notwithstanding the jury's verdict (JNOV). Plumber appealed.

 Holding: The Court of Special Appeals, held that whether forklift operator had the “last clear chance” or final opportunity to avoid accident was an issue for the jury.

 Reversed; jury verdict reinstated.

This appeal concerns the legal doctrine of “last clear chance.” Preston Carter accused an employee of Senate Masonry, Incorporated (“Senate”) of negligently harming him at a construction site. A jury in the Circuit Court for Prince George's County accepted that accusation, but found Carter negligent as well. Nonetheless, it awarded Carter damages, with the apparent belief that the Senate employee had the last clear chance to avoid the injury, and his failure to do so warranted compensation for Carter. The trial court disagreed and granted Senate's post-trial motion for judgment notwithstanding the jury's verdict (“JNOV”). We disagree **52 with the trial court and reinstate the jury's verdict.

The evidence at this trial consisted of three primary witnesses: two fact witnesses presented by Carter and an expert witness presented by Senate. Carter is a commercial plumber with twenty years' experience. He testified that on August 15, 1997, he was working in Columbia, Maryland, at the construction site for a new Safeway supermarket. While installing some rudimentary plumbing, Carter walked over to the nearby scaffolding to locate certain pipe fittings. He noticed a forklift that was situated about a hundred feet away from him. The forklift operator delivered a cube of cinder block to the scaffold.

As he knelt on the ground searching for the parts, he perceived the forklift move in behind him, coming as close as six to ten feet from him, and then stop in front of the scaffolding. The operator of the forklift then maneuvered the machine to place a pan of mortar upon the cube of cinder blocks that had just been delivered to the scaffold. His action caused several of the blocks to fall, striking Carter in the head, neck, shoulder, and back. It was Carter's testimony that he would have been clearly visible to the forklift operator all the time that he knelt near the scaffold.

 Hervan Montiel, the Senate employee who operated the forklift, testified as plaintiff's witness and recounted the series of events as follows:

 I remember the day of the accident. My tractor was parked. I tried to move the arm of the tractor towards the scaffold. And on my right side a person was coming by, and since he didn't stop, I stopped the arm of my tractor. He went underneath and he went to my left side. I waited for him to go away at least some eight or ten feet. And when he was no longer in front of me I continued with my concentration with the job that I was doing. I remember that when I put the box of the mix on one side then when I was taking out the forks I heard that someone screamed or yelled. And I saw what happened, the man was on the  ground. And that's all I remember.As the trial court noted, Carter and Montiel differed in their description of the sequence of events. Carter said that the forklift began its operation once he had already stopped near the scaffold. According to Montiel, however, he began the operation, stopped to let Carter pass, then continued his work.

Montiel stated further that he did not use a pallet on the morning of the accident, which he knew might lead to the forks of the forklift breaking the cube of cinder blocks, upon which he placed the pan of mortar.

Both Carter and Montiel denied having said anything to one another as they proceeded with their respective tasks. Carter explained, “[W]hen you're working construction you don't think to ask a guy to stop laying brick while you look for fittings.” He did not believe his actions were unsafe. Montiel acknowledged that he thought the placement of the block on the scaffold created a dangerous situation.

 Senate put forth the testimony of Stephen Fournier, an expert in civil engineering, who investigated “the circumstances” of Carter's injuries “to determine if anybody associated with the work acted in an unsafe or inappropriate manner.” The exclusive source of his eyewitness information was Senate employees. Fournier testified that Carter put “himself in a position of danger,” but also that Montiel increased the risk of injury by operating the forklift without a pallet. He was equivocal in his opinion as to whether Montiel had a duty to warn Carter of danger. Fournier stated that, if Montiel knew Carter was in a position of danger, he had a duty to warn; but, then, in response to questions posed by Senate's counsel, he remarked that Montiel “acted reasonably” in continuing with his work, without communicating with Carter.

At the close of the evidence, Senate moved for judgment upon the assertions that Carter acted negligently, but Montiel did not. Carter responded that Montiel breached a duty to warn and a duty to stop the forklift operation once he saw Carter kneeling by the scaffold. He raised the specter of the last clear chance doctrine. The circuit court reserved ruling  on the motion, stating, “[T]here are facts that would sustain a finding of negligence and facts that would find there was no contributory negligence.” The judge also noted his uncertainty as to whether the last clear chance doctrine applied. Accordingly, the court denied Carter's motion for judgment, which he premised on the last clear chance doctrine. 

Preparing the case for deliberation, the court instructed the jury on negligence, contributory negligence, and as follows: 

The plaintiff has alleged that the Defendant had the last clear chance to avoid the injuries sustained by the Plaintiff. Before you can determine the issue of last clear chance you must first determine that the Defendant was negligent, second that the Plaintiff was contributorily negligent, and third, that the Defendant had a fresh opportunity of which the Defendant was aware to avoid the injury. 

The jury returned a verdict in favor of Carter, finding that Senate was negligent through the actions of Montiel, Carter was contributorily negligent, and Senate had the last clear chance to avoid the accident. It awarded Carter about $66,000.00 in economic damages and $150,000.00 in non-economic damages.

 Senate then moved for JNOV, with the principal assertion that Carter and Montiel committed their respective negligence simultaneously, so Senate could not be held to have squandered the final opportunity to avoid the accident. Also, Senate argued that Montiel did not have “superior knowledge” over Carter as to the risk at hand.

 Carter rebutted both those assertions. He attributed greater knowledge to Montiel, who surveyed the scene from the height of the forklift cab and who worked with cinder blocks on a regular basis. Moreover, Carter chronicled the events as follows: (1) Carter negligently stooped near the scaffold; (2) Montiel negligently failed to warn him to leave the area; and (3) Montiel negligently continued with the forklift operation. With this sequence of events, Montiel was the final bearer of the accident and injury.

 The trial judge engaged counsel in lengthy discussions about the facts of the case and the plethora of cases on point, but **54 he was confident that, no matter how he ruled, the case would be appealed. Ultimately, the court granted Senate's JNOV, without much explanation.

 Both Senate and Carter concede, for purposes of this appeal, that there were sufficient facts from which the jury could find that each of them acted negligently. That leaves them debating only whether Montiel could have avoided the accident-whether he held the last clear chance to transform the unfortunate hit to a near miss.

As this Court explained in Burdette v. Rockville Crane Rental, Inc., 130 Md.App. 193, 216, 745 A.2d 457 (2000): 

[T]he doctrine of last clear chance permits a contributorily negligent plaintiff to recover damages from a negligent defendant if each of the following elements is satisfied: (i) the defendant is negligent; (ii) the plaintiff is contributorily negligent; and (iii) 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.” 

The theory behind the doctrine is that “if the defendant has the last clear opportunity to avoid the harm, the plaintiff's negligence is not a ‘proximate cause’ of the result.” Id. at 215, 745 A.2d 457 (quoting W. Prosser, Law of Torts § 66 (4th ed. 1971)).

 A fresh opportunity” is the operative phrase, for the doctrine will apply only if “the acts of the respective parties [were] sequential and not concurrent.” Id. at 216, 745 A.2d 457. In other words, the defendant must have had a chance to avoid the injury after plaintiff's negligent action was put in motion. Liscombe v. Potomac Edison Co., 303 Md. 619, 637-38, 495 A.2d 838 (1985). The doctrine “assumes” that, after the primary negligence of the plaintiff and defendant, “the defendant could, and the plaintiff could not, by the use of *169 the means available avert the accident.” United Rys. & Elec. Co. v. Sherwood Bros., 161 Md. 304, 310, 157 A. 280 (1931). In this way, the defendant should have recognized and responded to the plaintiff's position of “helpless peril.” Baltimore & O.R. Co. v. Leasure, 193 Md. 523, 534, 69 A.2d 248 (1949).

 Our research revealed more than four dozen reported Maryland cases discussing the last clear chance doctrine. Its history in our State law dates back to 1868. See Burdette, 130 Md.App. at 215-16, 745 A.2d 457 (tracing the doctrine's roots to English common law); Ritter v. Portera, 59 Md.App. 65, 70-72, 474 A.2d 556 (1984) (same); see also N. Cent. Ry. Co. v. State, 29 Md. 420, 436 (1868) (first reference of the doctrine in Maryland law). The doctrine is more often described than applied because of the requirement that plaintiffs show a new act of negligence following their own actions.

 In Sears v. Baltimore and Ohio Railroad Co., 219 Md. 118, 148 A.2d 366 (1959), for example, the Court of Appeals declined to extend the doctrine to a plaintiff/appellant whose truck collided with a train as it crossed a set of tracks. The Court wrote: 

[T]here was no evidence sufficient to go to the jury in the present case to support a finding that, assuming the appellant's negligence, there was a time after such negligence when the appellee could have averted the accident and the appellant could not. Both the train and the truck were moving at the time of the impact, and it is clear that if the appellee was negligent, its negligence was concurrent and not sequential. We have said that in order for the rule to be **55 applicable “[s]omething new, or independent, must be shown, which gave the defendant a fresh opportunity to avert the consequences of his original negligence and the plaintiff's contributory negligence.” Even though the operator of the appellee's locomotive saw the appellant's truck standing or moving slowly at a point close to the tracks, he had the right to assume that the appellant would stop before he reached the track upon which the train was proceeding. The appellant did not present any evidence to support an inference that the appellee had a “fresh opportunity” to *170 avert the consequences of his own contributory negligence in driving onto the tracks.

 Id. at 125-26, 148 A.2d 366 (citations omitted). 

Likewise, in Quinn v. Glackin, 31 Md.App. 247, 355 A.2d 523 (1976), this Court did not see a last clear chance in an accident between a girl on a bicycle and a motorist. The adult, Mr. Glackin, saw the child heading for the street from her driveway when he was about 100 feet away from the driveway. He applied his brakes when he was about thirty feet away from her. The injured child, Marie Quinn, conceded her own negligence, but sought refuge in Mr. Glackin's failure to see her sooner and his failure to warn her of the impending danger by blowing the horn. In her view, after she headed for the street, “there was then still time for [Mr. Glackin] to avoid the accident.” Id. at 251, 355 A.2d 523.

 This Court disagreed:

 If the evidence in this case was sufficient to show any negligence at all on Mr. Glackin's part, and it is unnecessary to decide whether it was, then it was original negligence which continued, and concurred with the admitted negligence of Marie Quinn to cause her injury. 

There could be no fresh opportunity available to Mr. Glackin to avoid the consequences of Marie Quinn's negligence until she did something negligent. Her approach down the driveway was not negligent, and did not then place her in a position of peril. Her lawful approach could not constitute notice to Mr. Glackin that she would fail to yield the right of way to him. A motorist on the favored highway has the right to assume that the unfavored driver will yield the right of way.

 Marie Quinn's negligence-her failure to yield the right of way to a motorist on the favored highway-was followed almost instantaneously by the accident. The trial judge correctly ruled that there was no evidence to show that Mr. Glackin had a last clear chance to avoid the accident.

 *171 Id. at 254-55, 355 A.2d 523. Thus, we rejected plaintiff's attempt to split Mr. Glackin's negligence into separate acts of negligent warning and negligent doing.

In contrast, the premier example of the last clear chance doctrine at work is Ritter v. Portera, 59 Md.App. 65, 474 A.2d 556 (1984), which involved a group of young people and a moving car. One of the teenagers perched on the hood of the car, and, as the driver sped up and drove away, she fell off the car, grabbed hold of the bumper, and was dragged at least twenty feet. Clearly, the driver was negligent in inviting people to sit on the hood of his car, but the injured person was also negligent in accepting the invitation. For the trial court, the contributory negligence barred the teenager's claim against the driver.

 This Court reversed, however, reasoning that the injured teenager was not a “proximate cause of the accident.” Instead, the driver “could have, and indeed should have, refused to move the vehicle while [the teenager] was so situate[d].” Id. at 72, 474 A.2d 556. Because the driver's negligence was so clearly sequential to whatever negligence preceded it, the injured teenager was entitled to pursue a claim for recovery. See also Payne v. Healey, 139 Md. 86, 114 A. 693 (1921) (invoking the last clear chance doctrine to allow evidence to go to a jury that showed that train operators were responsible for a collision between an automobile and a semaphore).

 Carter faces the same hurdle as the plaintiffs in the cases discussed above. He cannot recover if the facts show only that he and Montiel both acted unreasonably, which would create only a concurrent negligence. Rather, Carter must show that the jury could have read the facts to mean that Montiel was negligent, Carter was negligent, and then Montiel had a new opportunity to change the course of events. 

We conclude that the facts could have been read to show the sequential course of events that Carter needs to defeat the grant of JNOV. The jury could have found from the testimony that Montiel negligently first placed the cube of cinder blocks on the forklift without using a pallet and placed them on the scaffold, possibly breaking some; that later, with the pan of mortar on the forklift, he saw Carter kneeling by the scaffold in harm's way and failed to warn him of the danger; and that, following a pause in his operations, he negligently proceeded to place the mortar on the scaffold, causing the cinder blocks to fall. There are various points along this continuum of negligent conduct where the jury might have interjected Carter's negligence, but the bottom line is that the jury could have concluded that Montiel held the final opportunity to avoid the accident.

 Beyond the doctrinal phrases of “last clear chance,” “fresh opportunity,” and “helpless peril,” the jury could have found from the evidence in this case an account of two men acting dangerously on a construction site, but with one man having superior knowledge of the impending danger, as well as the superior ability, the last clear chance, to avert it. Montiel was not like the train conductor in Sears, who could only watch the truck impede on the railroad tracks, or the driver in Quinn, who had no real opportunity to avoid hitting the child rushing at him. Montiel controlled the final force that brought about this accident-the forklift. Like the young driver in Ritter, Montiel had a “fresh opportunity” to avoid the accident. He could have refused to move his vehicle as long as Carter remained in danger. Because the jury could have lawfully found in favor of Carter, the circuit court should have respected its decision, and we now reinstate that verdict.