Carter v. Senate Masonry, Inc.

SONNER, Judge. 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 with the trial court and reinstate the jury’s verdict. I. It is critical to note at the outset that we present the facts in the light most favorable to Preston Carter, because he prevailed at trial and lost below on the JNOV. See Wholey v. Sears Roebuck, 370 Md. 38, 46 , 803 A.2d 482 (2002).

That also means that, in our analysis, we will reverse the grant of the JNOV if there is any evidence from which the jury could have reached the conclusion that it reached. Houston v. Safeway Stores, Inc., 346 Md. 503, 521 , 697 A.2d 851 (1997). The circuit court must respect these same guiding principles when ¹⁶⁵ it receives a motion for JNOV. See I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 248-50 , 272 A.2d 1 (1971).

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 plaintiffs 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 ¹⁶⁶ ground. And that’s all I remember. [1] 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 ¹⁶⁷ on the motion, stating, “[Tjhere 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 JNOY, 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. ¹⁶⁸ The trial judge engaged counsel in lengthy discussions about the facts of the case and the plethora of cases on point, but he was confident that, no matter how he ruled, the case would be appealed. Ultimately, the court granted Senate’s JNOV, without much explanation.

II

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 plaintiffs 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