UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, RICH-
ARDS & 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Unpublished opinions are not binding precedent in this circuit.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 par-
ties 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 colli-
sion 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 auto-
mated 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 high-
way, 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 alco-
hol 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 approxi-
mately fifty meters (164 feet) and that he was traveling at approxi-
mately 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 nec-
essary 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 per-
ception distance to be the same thing. The Plaintiffs' expert later real-
ized 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 Plain-
tiffs' only issue on appeal is whether the district court erred by refus-
ing 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 plain-
tiff must show that the defendant had a fresh opportunity to avert the
consequences of his original negligence and to avoid the conse-
quences 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 defen-
dant'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 negli-
gent act was crossing the highway outside of a marked crosswalk.
They allege that the Defendant's next act of negligence was his fail-
ure 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 Plain-
tiffs 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'

                     4
negligence was concurrent, and therefore the last clear chance doc-
trine 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 Plain-
tiffs.

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 differ-
ent 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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