UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA SARBACHER; MICHELLE

SARBACHER,

Plaintiffs-Appellants,

No. 96-1811

v.

IVAN DOUGLAS WIDGER,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Jillyn K. Schulze, Magistrate Judge.

(CR-94-1478-DKC)

Submitted: June 23, 1998

Decided: August 31, 1998

Before NIEMEYER and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joel DuBoff, DUBOFF & ASSOCIATES, Silver Spring, Maryland,

for Appellants. John F. Linsenmeyer, ROLLINS, SMALKIN, RICHARDS & MACKIE, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Lisa and Michelle Sarbacher (Plaintiffs), appeal the district court

order denying relief in their automobile tort case after a jury trial. The

court's jurisdiction was based upon diversity of citizenship. The parties consented to trial before a magistrate judge in accordance with 28

U.S.C. § 636 (1994). The Plaintiffs contend that the district court

erred in refusing to grant a jury instruction on the Maryland doctrine

of last clear chance and therefore the judgment should be reversed

and/or the case remanded for a new trial. After reviewing the record,

we find no error, and we affirm.

The Plaintiffs filed suit against the Defendant, Ivan Douglas

Widger, for damages sustained in a pedestrian and automobile collision which occurred on June 2, 1991, in Ocean City, Maryland. The

parties agreed that only issues related to liability would be submitted

to the jury. The evidence at trial showed that at approximately 1:45

a.m. on June 2, 1991, the Plaintiffs set out on foot to find an automated bank teller machine. The Plaintiffs stood in the area of the

intersection of Coastal Highway, also known as Philadelphia Avenue,

an eight-lane highway, and Newport Bay Drive.1 They looked to the

left and saw no oncoming cars, crossed the first four lanes of the highway, and stopped at the median. Michelle Sarbacher looked to her

right and saw no oncoming cars. She stepped into the highway and

Lisa followed. Upon reaching the second lane of southbound traffic,

Michelle saw headlights coming toward her. The Defendant drove the

oncoming vehicle. The Plaintiffs were unable to move out of the way

of the Defendant's vehicle. The Defendant's vehicle struck both

Plaintiffs.

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1 It is disputed whether the Plaintiffs reached the intersection farther

north at Coastal Highway and 118th Street. They did not cross in the

crosswalk of that intersection.

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The Defendant testified that he had been drinking at a bar and had

three sixteen-ounce beers prior to the accident. He had a blood alcohol count of .10 after the accident. The Defendant testified that he was

traveling in the second lane of southbound traffic at all times prior to

the accident. The Defendant stated that he did not see the Plaintiffs

in the highway until they were in his lane of traffic. He testified that

he was only able to slam on his brakes and turn his wheel to the right

to attempt to avoid hitting them.

The Defendant testified that he saw the Plaintiffs from approximately fifty meters (164 feet) and that he was traveling at approximately thirty-eight to thirty-nine miles per hour. Both the Plaintiffs

and the Defendant put on expert testimony to determine what the

stopping distance would be for the facts in this case. The experts

based their calculations upon the Defendant's testimony that he saw

the Plaintiffs for the first time approximately fifty meters away from

his vehicle. The Plaintiffs' expert testified that an average driver with

average reaction time should have been able to stop in 110 to 112

feet. The Defendant's expert testified that, considering the three necessary components of stopping: perception time, reaction time, and

stopping time, it should have taken approximately 153.5 feet to stop

for a passenger vehicle traveling at thirty-nine miles per hour.2 The

Defendant contends that the Plaintiffs' expert's calculations were

erroneous because their expert considered reaction distance and perception distance to be the same thing. The Plaintiffs' expert later realized his mistake and stated that perception distance is the distance it

takes to realize that something needs to be done and reaction distance

is the distance needed to physically carry out what needs to be done,

such as applying the brake. The expert did not re-calculate distance

necessary to stop, however.

The Plaintiffs requested that the court instruct the jury on the last

clear chance doctrine as an alternative theory of their case if the jury

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2 The 153.5 feet is still less than the approximately 164 feet from which

the Defendant estimated he first saw the Plaintiffs. This actually results

in the difference of one-fifth of a second in reaction time. This difference

is negligible. In addition, neither the Plaintiffs' nor the Defendant's

expert took into account the effect of darkness and reduced visibility that

would have increased the perception time and distance required to stop.

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found the Plaintiffs to be contributorily negligent. The court refused

to give the instruction. The jury found for the Defendant. The Plaintiffs' only issue on appeal is whether the district court erred by refusing to give the last clear chance instruction.

The decision of whether to give a jury instruction and the content

of an instruction are reviewed for an abuse of discretion. See United

States v. Abbas, 74 F.3d 506, 513 (4th Cir.), cert. denied, 517 U.S.

1229 (1996). To be entitled to a last clear chance instruction, a plaintiff must show that the defendant had a fresh opportunity to avert the

consequences of his original negligence and to avoid the consequences of the plaintiff's contributory negligence. The rationale of the

doctrine is that if the defendant has the last clear chance to avoid the

harm, then the plaintiff's negligence did not cause it. See Ritter v.

Portera, 474 A.2d 556, 558 (Md. Ct. Spec. App. 1984). The defendant's act of primary negligence alone is not enough to support a

request for the instruction. The defendant must commit sequential acts

of negligence. The last act of negligence must follow the plaintiff's

own negligence and provide an opportunity for the defendant, but not

the plaintiff, to avoid the accident. See Benton v. Henry, 215 A.2d

226, 228 (Md. 1965); Myers v. Alessi, 560 A.2d 59, 64 (Md. Ct. Spec.

App. 1989). Where the negligence of the parties is concurrent, the last

clear chance doctrine does not apply. See Benton , 215 A.2d at 228;

United States Fidelity & Guar. Co. v. Royer, 185 A.2d 341, 344 (Md.

1962).

The Plaintiffs allege that the Defendant's first act of negligence

was failing to see the Plaintiffs enter the highway. Although they do

not admit that they were negligent in entering the highway, they assert

that if the jury found them to be contributorily negligent, their negligent act was crossing the highway outside of a marked crosswalk.

They allege that the Defendant's next act of negligence was his failure to stop before hitting the Plaintiffs. Because their expert stated

that the Defendant might have been able to stop before hitting the

Plaintiffs, they contend he had the last clear chance to avoid harm.

We conclude that the Defendant's negligence cannot be deemed to

be two separate and sequential acts of negligence. Seeing the Plaintiffs in the highway and stopping to avoid hitting them is part of the

same sequence of events. See Benton, 215 A.2d at 228. The parties'

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negligence was concurrent, and therefore the last clear chance doctrine is inapplicable. The evidence regarding the lighting and road

configuration revealed that neither party should have had difficulty

seeing the other. At best, the Plaintiffs were negligently in the road,

see Dix v. Spampinato, 358 A.2d 237, 238-39 (Md. 1976), and the

Defendant negligently failed to stop in time to avoid hitting the Plaintiffs.

In addition, the court instructed the jury that they were to find

which party was negligent and whose negligence caused the accident.

The court further instructed the jury that the Plaintiffs would not be

barred from recovery if their negligence did not proximately cause the

accident. Because the last clear chance doctrine resolves issues of

proximate cause, a trial court may have more than one option in

instructing the jury on causation. If the facts support a different set of

instructions resolving the proximate cause issue, as a last clear chance

instruction would, the trial court, in its discretion, may issue a different instruction. See Simmons v. Urquhart, 664 A.2d 27, 33 (Md. Ct.

Spec. App. 1995). Accordingly, we find that the district court did not

abuse its discretion in instructing the jury on proximate cause and

declining to instruct on last clear chance.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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