UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TRACY A. CORDER,

Plaintiff-Appellant,

v.

No. 96-1748

CHALET SUSSE INTERNATIONAL,

INCORPORATED, t/a Susse Chalet

Motor Lodge,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

J. Frederick Motz, Chief District Judge.

(CA-95-2020-JFM)

Argued: June 4, 1997

Decided: July 11, 1997

Before WILKINSON, Chief Judge, and WILKINS and

HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gary Ross Alexander, ALEXANDER & CLEAVER,

P.A., Fort Washington, Maryland, for Appellant. Heather Jean Kelly,

MCCARTHY, BACON & COSTELLO, Lanham, Maryland, for

Appellee. ON BRIEF: Thomas W. Kinnane, ALEXANDER &

CLEAVER, P.A., Fort Washington, Maryland, for Appellant. Kevin
J. McCarthy, MCCARTHY, BACON & COSTELLO, Lanham,

Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Tracy A. Corder appeals an order of the district court granting summary judgment to Chalet Susse International, Incorporated (Chalet

Susse) in Corder's diversity action seeking to recover damages for

injuries he received when he dove into a motel swimming pool.

Corder contends that the evidence he presented was sufficient to raise

a genuine issue of material fact concerning whether he was contributorily negligent, whether he assumed the risk of his injuries, and

whether Chalet Susse had the last clear chance to avoid the accident.

We affirm.

I.

Viewed in the light most favorable to Corder, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986), the evidence presented

demonstrates the following. In the late evening of July 1, 1994,

Corder attended a party where he met Pablo Silva. Silva invited

Corder and others to swim in the pool at the motel where he was

employed as a lifeguard by Chalet Susse. Prior to leaving the party,

Corder consumed four twelve-ounce glasses of beer. Corder, Silva,

and a few friends arrived at the motel after 12:00 a.m. and entered the

motel lobby carrying a case of beer. Although the desk clerk smelled

alcohol on Silva, she gave him a key to the locked pool area.

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Upon entering the pool area, Corder began jumping from the side

of the pool into water that was over his head; the depth of the pool

ranged from three to six feet. He then proceeded to climb a five-foot

lifeguard stand and jump, feet first, into the deep end of the pool.

Eventually, rather than jumping into the deep end of the pool, Corder

jumped, feet first, toward the shallow end of the pool. His feet

absorbed the shock of the jump, and when he stood up, he realized

that the water was only chest deep. Immediately following this jump,

Corder attempted a flip from the lifeguard stand into the shallow end

where he had moments before determined the water to be only chest

deep. Corder testified that he was unable to "get[his] body to tuck

way [he] wanted it to" and that he struck his head on the bottom of

the pool. J.A. 76. As a result of the accident, Corder sustained paralyzing injuries.

Corder subsequently initiated this action alleging that Chalet Susse

had negligently permitted him to swim in its pool and that his injuries

were a proximate result thereof. Further, he maintained that even if

he was contributorily negligent, Chalet Susse's lifeguard Silva had

had the last clear chance to avoid the accident by warning Corder of

the danger.

Finding no genuine dispute of material fact, the district court

granted summary judgment in favor of Chalet Susse on the alternate

grounds that Corder was contributorily negligent, and that he had

assumed the risk of injury, in attempting to flip from the lifeguard

stand into water he knew from his previous jumps to be shallow. See

Fed. R. Civ. P. 56(b). Further, the district court determined that

because Silva's failure to warn Corder, at most, was concurrent with

Corder's own negligence, the doctrine of last clear chance was inapplicable. Corder appeals.

II.

Summary judgment is proper if, viewed in the light most favorable

to the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c); see Ross v. Communications Satellite Corp., 759

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F.2d 355, 364 (4th Cir. 1985). The nonmoving party is entitled to the

most favorable inferences that may reasonably be drawn from the

forecasted evidence, Ross, 759 F.2d at 364, but it "cannot create a

genuine issue of material fact through mere speculation or the building of one inference upon another," Beale v. Hardy, 769 F.2d 213,

214 (4th Cir. 1985). The essence of the inquiry the court must make

is "whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law." Anderson, 477 U.S. at 251-52. "[I]f the

evidence is such that a reasonable jury could [not] return a verdict for

the nonmoving party," summary judgment should be granted. Id. at

248. We review de novo the decision of the district court to grant

summary judgment. See Higgins v. E.I. DuPont de Nemours & Co.,

863 F.2d 1162, 1167 (4th Cir. 1988).

Under Maryland law, one is contributorily negligent as a matter of

law when the evidence 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." Rooney v. Statewide Plumbing & Heating--Gen.

Contractors, Inc., 290 A.2d 496, 499 (Md. 1972). Assumption of the

risk of injury occurs when one knows of and appreciates a risk and

voluntarily chooses to encounter it. See Hooper v. Mougin, 284 A.2d

236, 238 (Md. 1971). Here, Corder testified that he knew the water

was shallow yet he chose to flip from the lifeguard stand anyway.

Accordingly, the district court correctly determined that Corder was

contributorily negligent and assumed the risk of his actions.

The doctrine of last clear chance may not be applied unless "the

defendant [gained] a fresh opportunity to avert the consequences of

his original negligence and the plaintiff's contributory negligence."

Meldrum v. Kellam Distrib. Co., 128 A.2d 400, 404 (Md. 1957)

(internal quotation marks omitted). And, the doctrine cannot be

invoked when the plaintiff commits the final negligent act or the

plaintiff's negligence is concurrent with that of the defendant. See id.

Because Corder was negligent in attempting to dive into shallow

water from a five-foot lifeguard stand, at a minimum his negligent act

was concurrent with Silva's failure to warn him that jumping from the

stand was dangerous. Therefore, the district court properly refused to

apply the doctrine of last clear chance.

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III.

Because the evidence, viewed in the light most favorable to Corder,

demonstrates that Chalet Susse is entitled to judgment as a matter of

law, we affirm the decision of the district court.

AFFIRMED

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