[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12149

Non-Argument Calendar

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ARACELI ROSENSTAND, 

an individual, 

Plaintiff-Appellant,

versus

ELENA MARIE MULLER, 

Defendant-Appellee,

NATIONWIDE INSURANCE COMPANY OF AMERICA,

Defendant.

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2 Opinion of the Court 23-12149

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:22-cv-00053-SGC

____________________

Before ROSENBAUM, GRANT, and ABUDU, Circuit Judges.

PER CURIAM:

This case arises out of a car accident involving Appellant Araceli Rosenstand and Appellee Elena Muller, in which a jury found 

in favor of Muller, the defendant below. On appeal, Rosenstand 

challenges the district court’s denials of her Fed. R. Civ. P. 50(a) 

motions for judgment as a matter of law (“JMOL”) regarding: (1) her negligence per se claim; and (2) the inapplicability of Alabama’s “sudden emergency” doctrine. She also argues that the 

district court erred by providing a jury charge on Alabama’s “sudden emergency” doctrine, and that the jury’s verdict was against 

the great weight of the evidence. For the reasons stated below, we 

affirm. 

I. FACTUAL BACKGROUND & PROCEDURAL 

HISTORY

The undisputed facts in this case are that Rosenstand and 

Muller were traveling southbound along U.S. Highway 31 in Birmingham, Alabama, when a nonparty vehicle (the “third vehicle”)

merged onto the highway in front of Rosenstand. Rosenstand applied her brakes to avoid colliding with the third vehicle, causing 

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her to come to a complete or near-complete stop on the highway. 

Muller, who had been driving behind Rosenstand, also braked but 

nevertheless struck Rosenstand’s vehicle from behind. The third 

vehicle continued driving southbound and did not stop or return 

to the scene. 

Rosenstand initially filed her complaint in an Alabama state 

court, but Muller removed the case to federal court on diversity-of-citizenship grounds. Rosenstand then amended her complaint and asserted, inter alia, a claim of negligence per se on the 

basis that Muller violated Ala. Code § 32-5A-89(a) by failing to 

maintain a proper distance between their vehicles. Section 32-5A89(a) requires a driver to leave “at least 20 feet for each 10 miles per 

hour of speed between the vehicle that he or she is driving and the 

vehicle that he or she is following.” Rosenstand alleged that when 

she applied her brakes as the third vehicle merged onto the highway in front of her, Muller struck her from behind because she had 

been following too closely in violation of § 32-5A-89(a). Muller answered and asserted a defense based on Alabama’s “sudden emergency” doctrine. 

During a pre-trial deposition, Muller described the distance 

between her and Rosenstand’s vehicle and the speed at which they 

were traveling prior to the collision. She testified that she left approximately “one standard car length” between their vehicles and

that she and Rosenstand were traveling around 20 miles per hour. 

However, at trial, Muller testified that she had left “enough space”

between their vehicles prior to the collision. She explained that 

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based on an experiment that she had conducted the day before the 

trial, the distance between the vehicles had to be greater than what 

she had described during her deposition because she recalled observing certain features of the roadway and of Rosenstand’s vehicle 

that would not have been visible if she had not left “enough space” 

between them. 

As to whether the third vehicle created a “sudden emergency,” the parties’ testimonies conflicted at trial. Rosenstand initially testified that she had “plenty chance to stop” when the third 

vehicle merged in front of her. Yet, on cross-examination, she 

stated that the third vehicle had “sudden[ly]” merged into her lane, 

and she had to “brake hard” to avoid a collision. Muller testified 

that she considered that area of the highway to be “dangerous” because she had previously “witnessed people pull out in front of people[,]” but she had never seen drivers be forced to come to a complete stop when another vehicle merged in front of them. She 

maintained that she never saw the third vehicle coming down the 

on-ramp to enter the highway, but she did consider the third vehicle to be “close” when it finally merged in front of Rosenstand. 

Muller could no longer recall how fast she and Rosenstand were 

traveling. 

After the parties rested their case, Rosenstand moved for 

JMOL under Rule 50(a) as to her negligence per se claim and the 

inapplicability of Alabama’s “sudden emergency” doctrine. She 

also objected to the district court providing a jury charge on that 

doctrine, arguing that it only applied where an “unusual” event 

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gave rise to the “emergency,” and Muller’s testimony had established that vehicles commonly merged in front of other vehicles in 

that area of the roadway. 

The district court denied Rosenstand’s Rule 50(a) motions 

and overruled her objection to the jury charge. The court subsequently instructed the jury, in relevant part, that if Muller “was 

faced with a sudden emergency” that she did not create, “whether 

[her] conduct [wa]s negligent is determined by how” a reasonable 

person “would have acted in a similar situation.” The jury returned 

a verdict in Muller’s favor. 

Thereafter, the court inquired about whether there were 

any other matters that needed to be addressed, specifically asking, 

“[a]nything for the plaintiff?” At that point, Rosenstand did not renew her motions for JMOL under 50(b), nor did she move for a 

new trial. She also never renewed her JMOL motions nor moved 

for a new trial at any point thereafter. The district court ultimately 

entered judgment pursuant to the jury’s verdict, and this appeal 

followed. 

II. DISCUSSION

A. Rosenstand Forfeited Any Challenge to the Denial of Her Rule 50(a) Motions and to the Verdict.

“We review de novo the denial of a motion for [JMOL] under 

. . . [Rule] 50, viewing the evidence in the light most favorable to 

the non-moving party.” St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. 

Co., 5 F.4th 1235, 1242 (11th Cir. 2021). To preserve an appellate

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challenge to the denial of a Rule 50(a) motion, however, a party 

must renew its motion under Rule 50(b) after the verdict. See id. at 

1245 (holding that the plaintiff “did not preserve its challenge to the 

denial of its Rule 50(a) motion” because “it never renewed its motion after the verdict under Rule 50(b).”); see also Unitherm Food Sys., 

Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006) (“the precise subject matter of a party’s Rule 50(a) motion . . . cannot be appealed 

unless that motion is renewed pursuant to Rule 50(b).”). 

On appeal, Rosenstand argues that the district court erred in 

denying her Rule 50(a) motions for JMOL, but the record is clear 

that she failed to preserve those challenges for purposes of appeal. 

Although she moved under Rule 50(a) based largely on the same 

arguments that she now asserts on appeal, she “did not preserve 

[her] challenge to the denial of” the motions because she “never 

renewed [them] after the verdict under Rule 50(b).” See St. Louis 

Condo Ass’n, 5 F.4th at 1242. Therefore, we are “powerless” to consider those Rule 50(a) rulings. See Unitherm Food Sys., Inc., 546 U.S. 

at 395. 

Rosenstand also argues, for the first time on appeal, that the 

jury rendered a verdict against “the great weight of the credible evidence presented at trial.” However, not only did she fail to request 

a new trial, which is the form of relief governed by the “great 

weight” standard, but she never raised any challenges to the jury’s 

verdict altogether. See Watts v. Great Atl. & Pac Tea Co., 842 F.2d 

307, 310 (11th Cir. 1988) (“A trial judge may grant a motion for a 

new trial if he believes the verdict rendered by the jury to be 

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contrary to the great weight of the evidence.” (emphasis added)). 

Although we may choose to entertain an argument raised for the 

first time on appeal under five circumstances set forth in Access 

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004), 

none of those circumstances apply here. Accordingly, we decline 

to consider Rosenstand’s argument, raised for the first time on appeal, that the jury rendered a verdict against the great weight of the 

evidence.

B. The “Sudden Emergency” Jury Charge Was 

Proper.

“We review jury instructions de novo to determine whether 

they misstate the law or mislead the jury to the prejudice of the 

objecting party” but give the district court “wide discretion as to 

the style and wording employed.” Bhogaita v. Altamonte Heights 

Condo. Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014) (quotation 

marks omitted). “We ‘reverse only where we are left with a substantial and ineradicable doubt as to whether’ the district court 

properly guided the jury.” Id. (quoting State Farm Fire & Cas. Co. v. 

Silver Star Health & Rehab., 739 F.3d 570, 585 (11th Cir. 2013) (internal quotation marks omitted)). 

Under Alabama law, the “sudden emergency” doctrine applies where: (1) there is an emergency that is sudden; and (2) the 

“emergency [is] not . . . the fault of the one seeking to invoke the 

rule.” Friedlander v. Hall, 514 So. 2d 914, 915 (Ala. 1987). “[T]here 

are situations where it would be prejudicial error to instruct a jury 

as to sudden emergency[,]” but “as a general rule, it is a question 

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for the jury whether an emergency exists, whether it was created 

by the one seeking to invoke the rule, and whether h[er] conduct 

under all the circumstances amounts to negligence[.]” Id. (citations 

omitted). Alabama law is clear that if there is a factual dispute regarding the applicability of the “sudden emergency” doctrine, it is 

proper to charge the jury on that doctrine. See Bennett v. Winquest, 

564 So. 2d 405, 406 (Ala. 1990) (affirming the trial court’s decision 

to give the jury charge where a “fact question” existed about 

whether the situation gave rise to a “sudden emergency”); Williams 

v. Worthington, 386 So. 2d 408, 409 (Ala. 1980) (holding that it is 

proper to give the charge “when the evidence presents a question 

of fact as to whether the defendant contributed to the emergency”). 

On appeal, Rosenstand argues that the district court erred in 

charging the jury on Alabama’s “sudden emergency” doctrine because there was no trial evidence establishing that the doctrine applied. Specifically, she asserts that the third vehicle’s actions were 

foreseeable and thus did not create a “sudden emergency,” and any 

such emergency that existed arose due to Muller’s own conduct in 

following too closely, rendering a jury charge on the “sudden 

emergency” doctrine inappropriate. Muller responds that the trial 

evidence created a question of fact as to whether the third vehicle, 

when it merged in front of Rosenstand and caused Rosenstand to 

come to a complete or near complete stop on the highway, created 

a “sudden emergency” that Muller herself did not create. After reviewing the record, we are not left “with a substantial and ineradicable doubt as to whether” the district court committed prejudicial 

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error by giving the “sudden emergency” jury charge. See Bhogaita, 

765 F.3d at 1285. 

Although the parties’ testimonies conflicted about whether 

the third vehicle created a “sudden emergency,” and about 

whether Muller caused or contributed to that emergency, the presence of factual disputes concerning those issues rendered the jury 

charge appropriate. See Friedlander, 514 So. 2d at 915. Regarding 

whether a “sudden emergency” existed in the first instance, Rosenstand testified that she had “plenty chance to stop” when the third 

vehicle merged in front of her, but then she testified that the third 

vehicle “sudden[ly]” merged into her lane, and that she had to 

“brake hard” to avoid a collision. Further, while Muller may have 

previously “witnessed people pull out in front of people” on the 

highway, she testified that unlike the circumstances giving rise to 

the instant collision, she had never seen drivers be forced to come 

to a complete stop when another vehicle merged into their lane. 

Thus, while Rosenstand’s testimony alone created a question of 

fact as to whether the third vehicle created a “sudden emergency,” 

Muller’s conflicting account of the incident also supported the jury 

instruction. See Bennett, 564 So. 2d at 406. 

Because we are not left with a “substantial and ineradicable 

doubt” about whether the district court misled the jury by providing a charge on Alabama’s “sudden emergency” doctrine, we affirm the district court’s decision to instruct the jury on the doctrine. 

See Bhogaita, 765 F.3d at 1285. 

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III. CONCLUSION

For the reasons outlined above, we AFFIRM the district 

court’s judgment. 

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