UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOANNE B. O'NEILL,
Plaintiff-Appellant,

v.

RENE BRINGAS DIMARNANO,
                                                                   No. 97-2460
Defendant-Appellee,

and

CAJAYON DIMARNANO,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-96-1028-AW)

Submitted: July 31, 1998

Decided: September 10, 1998

Before ERVIN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Joel DuBoff, Steven R. Hook, DUBOFF & ASSOCIATES, Silver
Spring, Maryland, for Appellant. Timothy S. Smith, Lanham, Mary-
land, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

On January 24, 1994, a car driven by Rene Bringas Dimarnano col-
lided with one driven by Joanne B. O'Neill. In this diversity action,
28 U.S.C.A. § 1332 (West 1993 & Supp. 1998), O'Neill sued Dimar-
nano for negligence. The jury found in favor of Dimarnano, and the
magistrate judge denied O'Neill's motion for judgment as a matter of
law. O'Neill appeals.

Dimarnano testified that, while proceeding slowly, he saw
O'Neill's car approaching. He attempted to slow down so that she
could proceed first through a curve of almost ninety degrees. Instead,
he skidded on ice, lost control of the car, crossed the center line, and
ran into O'Neill's car. Dimarnano estimated that he was traveling at
five to eight miles per hour at the time, although he was watching the
road rather than his speedometer. O'Neill had seen Dimarnano begin
to skid and stopped her car, but to no avail. O'Neill was taken to the
hospital in an ambulance and released the same day. She testified that
she had back problems continuing up to the time of trial as a result
of the accident, although she had back problems before the accident,
as well. The investigating police officer, O'Neill and Dimarnano all
stated that there was ice on the roads that morning, although O'Neill
stated that she had driven the same road earlier that day without inci-
dent.

At trial, the magistrate judge granted Dimarnano's request for an
instruction under Maryland's "acts in emergencies" doctrine over
O'Neill's objection. O'Neill argues on appeal that this ruling was
error.

The content of jury instructions in a diversity case is a matter of
state law. Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1293 (4th Cir.
1995). We review the district court's decisions regarding instructions

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for abuse of discretion. Trimed, Inc. v. Sherwood Medical Co., 977
F.2d 885, 890 (4th Cir. 1992). Under Maryland law, an instruction not
supported by the evidence is "an improper abstraction, and should not
be given." Rustin v. Smith, 657 A.2d 412, 414 (Md. App. 1995).

Under the "acts in emergencies" doctrine, a driver who suddenly
finds himself in an emergency situation not created by his own con-
duct is not required to exercise the same care that he would under nor-
mal circumstances, when he has time to reflect on a course of action.
See Warnke v. Essex, 141 A.2d 728, 729 (Md. 1958). His conduct is
to be compared to that of an ordinarily prudent person under the same
circumstances, with the emergency itself as one of the circumstances.
Ryan v. Thurston, 347 A.2d 834, 836-37 (Md. 1975). If there is evi-
dence legally sufficient to show an emergency existed, then whether
the driver was confronted with an emergency and whether he acted
negligently under the circumstances are questions for the jury. Id. at
837; Warnke, 141 A.2d at 730.

O'Neill argues that, as the evidence did not support an "acts in
emergencies" instruction, the magistrate judge abused his discretion
in granting it. She relies heavily on the Court of Special Appeals'
decision in Rustin, 657 A.2d at 415. Rustin lost control of his car in
a heavy rain, spun into the lane of oncoming traffic, and struck
another vehicle. Rustin stated in an interrogatory that the car was
hydroplaning at the time of the accident, but claimed at trial that he
lost control when the car hit a pothole. He did not testify of any
actions he took to minimize the risks from bad weather or to avoid
a collision once he lost control. Id. The appellate court upheld the trial
court's decision not to give an "acts in emergencies" instruction, hold-
ing that there must be some conduct or action on the part of defendant
in response to the emergency. Rustin made no choices and took no
actions, reasonable or otherwise, in response to the emergency. There-
fore, the trial court did not abuse its discretion in refusing the instruc-
tion. Id.

O'Neill argues that the emergency in this case, if any, was Dimar-
nano's car skidding on ice, and that, as in Rustin, Dimarnano took no
action subsequent to the emergency. Dimarnano asserts that the emer-
gency was an oncoming car on an icy curve, and that the action he

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took was stepping on the brake in an attempt to allow O'Neill's car
to proceed.

During the trial, in response to O'Neill's objection to the "acts in
emergencies" instruction, the magistrate judge cited Moats v.
Ashburn, 483 A.2d 791 (Md. App. 1984), which involved a car slid-
ing on snow or ice. The court in Moats held that giving an unavoid-
able accident instruction was error, but a "sudden emergency"
instruction would have been proper. Id. at 795. We conclude that the
magistrate judge did not abuse his discretion in submitting the instruc-
tion to the jury, allowing it to decide if an emergency existed, and if,
in light of an emergency, Dimarnano acted as a reasonably prudent
driver.

O'Neill next asserts that she was entitled to judgment as a matter
of law, Fed. R. Civ. P. 50. O'Neill bases her argument on the assump-
tion that the "acts in emergencies" instruction was incorrect. If Dimar-
nano's conduct was not excused as a reasonable response to a sudden
emergency, O'Neill argues, the uncontradicted evidence shows that
Dimarnano caused the accident by crossing the center line and strik-
ing O'Neill's vehicle. According to O'Neill, this conduct violated
Maryland traffic laws and provided adequate evidence of negligence.
But under Maryland law:

          The mere fact that a vehicle skids or slides on a highway
          does not of itself constitute evidence of negligence. But
          skidding may be evidence of negligence if it appears that it
          was caused by a failure to take reasonable precautions to
          avoid it, when the conditions at the time make such a result
          probable in the absence of such precaution.

Trusty v. Wooden, 247 A.2d 382, 384-85 (Md. 1968) (citations omit-
ted). We review the district court's refusal to grant a motion for judg-
ment as a matter of law only to resolve whether, viewing the evidence
in the light most favorable to the party opposing the motion, the jury
could reasonably find in favor of that party. Atlas Foods Sys. &
Servs., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 597 (4th Cir.
1996). Under the evidence presented, a verdict for Dimarnano was
reasonable in view of the icy conditions of the road and considering
the "acts in emergencies" doctrine.

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We affirm the judgment of the magistrate judge. 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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