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WARE v. UNITED STATES

July 12, 1993

DEBORAH WARE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 I. INTRODUCTION

 Trial was held in this case on July 6-8, 1993. The Court, after careful consideration of the submissions of the parties, the testimony of witnesses, the exhibits, the arguments of counsel, the applicable law, and the entire record herein, concludes that accident was caused by the Plaintiff's negligence, or alternatively, by the Plaintiff's contributory negligence. The Court shall therefore enter judgment for the Defendant. The following shall constitute the Court's Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

 II. BECAUSE THE PLAINTIFF WAS NEGLIGENT OR CONTRIBUTORILY NEGLIGENT IN TURNING LEFT FROM THE RIGHT LANE OF LANDOVER ROAD AFTER SEEING OTHER CARS PROCEEDING ON HER LEFT, THE PLAINTIFF IS BARRED FROM RECOVERY UNDER MARYLAND LAW.

 The parties agree on the legal standards applicable in this case. The FTCA permits a party to recover damages:

 
for personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 28 U.S.C. § 1346(b). Thus, the Court must consider whether Deputy Harris was negligent and whether Ms. Ware was contributorily negligent under Maryland law with respect to the facts in this case.

 The trial testimony indicated that, immediately prior to the accident, Ms. Ware was travelling eastbound on Route 202, as was Deputy Harris. It is undisputed that there is a ramp exit from the Baltimore-Washington Parkway to Route 202, or Landover Road, for traffic travelling thereon in an easterly direction. The distance between the ramp exit on Route 202 and Kilmer Road is 8/10 of a mile. The parties agree that Route 202 had been newly paved with asphalt prior to the collision between the Plaintiff's automobile and the government vehicle. The parties also agree there were cones located somewhere along Route 202, apparently to funnel eastbound traffic to the right side of Route 202.

 Harris asserts that he exited the ramp onto Landover Road and proceeded to 6307 Landover Road in an attempt to serve a warrant. Afterwards, he proceeded eastbound on Landover in the second lane from the right. Moments before Harris reached the intersection of Landover Road and Kilmer Road, the Plaintiff's car, which was to the right of Harris' car, moved left into his lane and nicked the front bumper of his car. Harris, upon impact by the Plaintiff's car, then slammed on his brakes, which locked. Harris' car skidded on the new asphalt, sliding to the left between the traffic cones and into the center of the intersection where it again was hit by the Plaintiff's car. The cars then spun away from each other. The Defendant contends that, but for the Plaintiff's attempts to cut in front of Harris' car in an attempt to turn left, the collision would not have occurred. The Defendant contends that the Plaintiff was guilty of negligence in the first instance, and in any event, was guilty of contributory negligence, and such negligence or contributory negligence was the proximate cause of the accident and injury on the date in question. The law of Maryland is clear that a Plaintiff cannot recover if her own negligence is a proximate cause of her injuries. Harrison v. Bd. of Educ., 295 Md. 442, 456 A.2d 894 (Md. 1983).

 The Plaintiff claims that Harris was negligent, or alternatively, that he had the last clear chance to avoid the collision. The Plaintiff argues that she was in the right lane of Landover Road until she got to the intersection of Kilmer Road. Then, upon a green light, she attempted to make a left turn onto Kilmer Road, a two-lane street. She claims that she looked but saw no cars coming in an eastbound direction in the lane or lanes to her left which would impair her ability to make a left turn. She also contends the collision occurred in the intersection and the impact only occurred there and not prior to reaching the intersection. The Plaintiff alleges that Harris must have cut between the cones and then proceeded easterly to the intersection at Kilmer Road. She contends that Harris violated a number of traffic regulations of the State of Maryland, including § 21-201, which requires drivers to obey the instructions of any traffic control device, § 21-309, which requires drivers to observe traffic control devices that prohibit changing lanes, and § 21-1114, which prohibits drivers from driving on newly repaired roadways not yet opened to the public.

 In light of the factual dispute in the case, and as both parties concede, the Court is required to assess the credibility of the witnesses and the weight of the evidence on the issue of liability. The Court has determined that the Defendant's version of the incident is the more plausible. For example, on the first day of trial, the Plaintiff advised the Court that she could not remember how the accident happened and that she did not know how she managed the two to three hour drive to Newport News, Virginia, from the accident site. The Court notes that the Plaintiff called a lawyer the next day, who advised the Plaintiff to seek medical help.

 The Plaintiff's lone other fact witness, Robert Blunt, was described by Harris as a "perjurer." Although the Court makes no such finding, it is curious to note that Blunt, a colleague from the Plaintiff's former office, did not stop at the scene of the accident, nor did he disclose that he was a witness to the police officer on the scene, although he allegedly recognized the Plaintiff at the time, and the fact that he served previously as a Metropolitan Police officer. Not until a few days after the accident did he come forward and offer support. Lastly, it is worthy of note that neither party was charged with a traffic offense by the Maryland police officer who came upon the scene shortly after the accident.

 Alternatively, the Court finds that the Plaintiff was guilty of contributory negligence. Her own testimony indicated that she knew, prior to the time she attempted to make a left turn from the right lane of Landover Road, that cars were cutting through the cones to turn left. She had to know other cars were travelling eastbound in the same direction as the Plaintiff prior to the intersection. She nevertheless turned left on the green light and a few seconds later the occurrence happened. She failed to look and see as required by law. See Southern Maryland Elec. Coop., Inc. v. Blanchard, 239 Md. 481, 212 A.2d 301, 305 (Md. 1965). It also was negligent on ...


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