                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                  FOR THE FOURTH CIRCUIT


SHALLAND JONES,                          
                  Plaintiff-Appellant,
                  v.
                                                No. 03-1632
PETER FINIS GRIFFEY; D&M
CARRIERS, LLC,
              Defendants-Appellees.
                                         
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
                Jerome B. Friedman, District Judge.
                          (CA-02-890-2)

                       Argued: June 2, 2004

                       Decided: July 6, 2004

  Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Philip John Geib, Virginia Beach, Virginia, for Appellant.
Bryan Karl Meals, MCGUIREWOODS, L.L.P., Norfolk, Virginia, for
Appellees. ON BRIEF: Robert W. McFarland, MCGUIREWOODS,
L.L.P., Norfolk, Virginia; William H. Baxter, II, MCGUIREWOODS,
L.L.P., Richmond, Virginia, for Appellees.
2                           JONES v. GRIFFEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   In this diversity case, Shalland Jones sued Peter Griffey for injuries
that occurred when their respective vehicles collided as Mr. Griffey
was turning left off of Berry Hill Road in Smithfield, Virginia. Fol-
lowing trial, the jury found in favor of Mr. Griffey. Ms. Jones timely
appealed. For the reasons that follow, we affirm.

                                   I.

   On December 3, 1999, Ms. Jones left work at the Gwaltney Pack-
ing Plant in Smithfield. She was driving a 1995 Mercury Tracer and
was accompanied by Tracy Bradshaw, her sister. Mr. Griffey was
driving a tractor trailer to the Gwaltney Plant on Berry Hill Road on
behalf of his employer, D&M Carriers.

   Although many of the facts surrounding the accident are unclear,
it is undisputed that Ms. Jones and Mr. Griffey were traveling in
opposite directions on the two lanes of Berry Hill Road and that Mr.
Griffey had to turn left, across Ms. Jones’s lane, to enter the Gwaltney
Plant. The accident occurred at this juncture.

   Accounts of the accident itself diverge markedly. Ms. Jones testi-
fied that as she proceeded down Berry Hill Road, she looked at her
speedometer to make sure that she was not speeding. She expressed
uncertainty as to how far away Mr. Griffey’s vehicle was when she
first saw it, but stated that when she saw him turn left, she swerved
to the right in an unsuccessful attempt to avoid impact. Ms. Jones fur-
ther testified that she attempted to brake.

  Mr. Griffey testified that he had stopped when the accident
occurred. He stated that in preparing to turn left into the Gwaltney
Plant, he had just crossed the center median when he stopped to allow
                            JONES v. GRIFFEY                           3
a delivery truck coming out of the plant to exit and turn left. He stated
that he did not see Ms. Jones until the delivery truck had completed
its turn and proceeded in the direction from which Ms. Jones was
coming. Mr. Griffey testified that he had not started moving again
when Ms. Jones collided with the left front fender of his truck. Mr.
Griffey did not see Ms. Jones make any evasive maneuvers to avoid
impact, and further testified that she appeared to be speeding.

   Ms. Bradshaw testified that she also worked at the Gwaltney Plant,
and was riding home with Ms. Jones on the day of the accident.
According to Ms. Bradshaw, she was not paying attention to the
speed of the vehicle. Ms. Bradshaw stated that she was not conversing
with Ms. Jones; she was reading a sports magazine and noticed noth-
ing that happened before the collision. She further testified that the
vehicle did not slow down prior to impact, but maintained the same
rate of speed "the whole time." J.A. 211.

   The most detailed testimony about the accident was provided by
Richard A. Guillory, who worked at the Gwaltney Plant as a Security
Officer at the time of the accident. Mr. Guillory saw Mr. Griffey driv-
ing slowly along Berry Hill Road, looking as though he might be lost.
Mr. Guillory testified that Mr. Griffey was starting to turn into the
Plant when he collided with Ms. Jones. According to Mr. Guillory,
Ms. Jones’s head was moving from side to side as though she was
engaged in conversation. He estimated Ms. Jones’s speed to be
approximately 45 miles per hour in a 35 mile per hour zone, and
stated that she swerved to the right in an unsuccessful attempt to
avoid Mr. Griffey. Mr. Guillory further testified that he did not hear
the application of brakes by either vehicle.

   Officer Mark Whitefleet of the Smithfield Police, who was sum-
moned to the scene following the accident, testified regarding the
debris near the edge of Ms. Jones’s lane of travel, which suggested
she had tried to move to the right to avoid the collision. Officer
Whitefleet saw no evidence of skidding. He further testified, contrary
to Mr. Griffey’s assertion that he had merely crossed the median, that
the actual point of impact would have placed the cab of his truck fully
in Ms. Jones’s lane.
4                               JONES v. GRIFFEY
                                       II.

   After the close of evidence at trial, the district court entertained
motions on jury instructions. Over objection by Ms. Jones, the court
granted Mr. Griffey’s request to give Instruction No. 10.105 of the
Virginia Model Jury Instructions. The instruction is taken from
§ 46.2-880 of the Code of Virginia,1 and consists of a table reflecting
average stopping distances under certain circumstances.2

   During the course of deliberations, the jury communicated three
requests to the district court: it asked to see a jury instruction, the
stopping distance chart, and some missing pictures. Ms. Jones
renewed her objection to the giving of Jury Instruction 10.105. The
district court called the jury back to respond to the note and to inquire
about the jury instruction sought. One request was for Jury Instruction
    1
     Prior to 1989, the statutory table of stopping distances was found at
Va. Code § 46.1-195(b). Approximately one month before the trial in this
case, the legislature amended § 46.2-880 to note in part that "the above
table has been constructed, using scientific reasoning, to provide fact-
finders with an average baseline for motor vehicle stopping distances: (1)
for a vehicle in good condition and (2) on a level, dry stretch of highway,
free from loose material." Id.
   2
     As given by the district court, the instruction stated:
           The following are the results of experiments made with vehi-
        cles, unloaded except for the driver, equipped with four-wheel
        brakes, in good condition, on dry, hard, approximately level
        stretches of highway free from loose material:
          The results of these experiments are not conclusive, but you
        may consider them if you believe that the conditions of the
        experiments have been proven.
          ...
           The figures representing the stopping distance for cars and
        trucks are not precise, and may not be accurate in this case. You
        may consider the figures a frame of reference for other evidence
        introduced in this case, but you may not assume that the figures
        are reflective of the action of either driver. That must only be
        determined in the light of all of the evidence in the case.
J.A. 349 (table of speeds and stopping distances omitted).
                            JONES v. GRIFFEY                           5
10.105. In response, the district court repeated the numbers in the
stopping distances chart. In response to another question, the district
court also reviewed the instructions regarding negligence and contrib-
utory negligence.

  On May 6, 2003, the jury returned a verdict in favor of Mr. Griffey.
This appeal followed.

                                  III.

    Ms. Jones’s sole claim on appeal is that the district court erred by
giving Jury Instruction No. 10.105 where the evidence did not support
it. This court reviews challenges to jury instructions for abuse of dis-
cretion. Johnson v. MCNA Am. Bank, NA, 357 F.3d 426 (4th Cir.
2004). In a diversity case, state law determines the substance of the
jury instructions, but federal law governs the manner in which the
instructions are given and whether any error in the instructions is prej-
udicial. See Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1293 (4th Cir.
1995). Hence, even if the challenged instruction is erroneous under
state law, this court will not reverse unless the error seriously preju-
diced the challenging party’s case. Johnson, 357 F.3d at 432.

   The Virginia courts have long been critical of the stopping dis-
tances instruction that Mr. Griffey advanced at trial. See Shelton v.
Mullins, 147 S.E.2d 754, 758 (Va. 1966) (finding error, albeit harm-
less, in the giving of the instruction in a case in which the evidence
did not support it); Beasley v. Bosschermuller, 143 S.E.2d 881, 886-
87 (Va. 1965) (same). As noted by the Virginia Supreme Court,
"these tables create no presumption in law," and where there is an
inadequate foundation to support an instruction containing these
tables, "their presence before the jury inject[s] an element in the case
which was not warranted by the evidence." Bunn v. Norfolk, Franklin
& Danville Ry. Co., Inc., 225 S.E.2d 375, 379 (Va. 1976) (internal
quotations omitted). Consequently, the Virginia Supreme Court "ha[s]
repeatedly discouraged the granting of an instruction on the tables of
speed and stopping distances unless it is clearly supported by the evi-
dence." Id.

   Here, there is no doubt that the evidence did not support Jury
Instruction No. 10.105. As the Supreme Court of Virginia has stated
6                               JONES v. GRIFFEY
        Under Code § [46.2-880], it is recognized that the experi-
        ments upon which the statistical tables of speed and stop-
        ping distances are based were conducted under certain stated
        conditions. These include a motor vehicle (1) unloaded
        except for the driver, (2) equipped with four-wheel brakes,
        (3) in good condition, and (4) traveling on dry, hard,
        approximately level stretches of highway free from loose
        material.

Johnson v. Haas, 295 S.E.2d 789, 790 (Va. 1982). The Court in Haas
held that proof of each of the factors enunciated in Code § 46.2-880
is required as a foundation before any instruction based on tables of
speed and stopping distances can be presented to the jury. Id. The
Court went on to find reversible error in the granting of the instruction
where it was not justified by the evidence. Id.

   Mr. Griffey’s argument that the testimony adduced at trial pre-
sented an adequate foundation for Jury Instruction 10.105 is untena-
ble. It is undisputed that Ms. Jones was not alone in the car. Ms.
Jones’s testimony that she attempted to apply her brakes does not sup-
port an inference that those brakes were in good condition. The photo-
graphs in the record indicate the general conditions of the road, but
reflect nothing of its moisture level or freedom from loose material.
We hold that giving Instruction 10.105 under these circumstances was
error. We therefore turn to a determination of whether it was revers-
ible error.3
    3
   Mr. Griffey points out that the district court cautioned the jury on the
use of the stopping distances information. In responding to the juror
request, the district court stated that
        I do not want this instruction to override your good judgment on
        all of the other instructions on the law I gave you. This is only
        one element of the case which you may consider in context with
        all of the other evidence that has been presented to you.
J.A. 338. This admonition does not cure the error that occurred when the
district court gave the stopping distances instruction in the absence of a
proper foundation. It does, however, militate in favor of a finding of
harmlessness.
                             JONES v. GRIFFEY                              7
                                    IV.

   After carefully considering the record, briefs and applicable law,
and having had the benefit of oral argument from the parties, we
uphold the jury’s verdict and decline to remand the matter for a new
trial. As noted above, the district court erred in giving Jury Instruction
10.105 in the absence of evidence in the record to support it. How-
ever, reversal is not warranted unless the erroneous instruction seri-
ously prejudiced Ms. Jones’s case. In essence, if the "verdict actually
rendered [at] trial was surely unattributable to the error," United
States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000) (alteration in origi-
nal, internal quotation omitted), we will not disturb the jury’s verdict.

   Here, we find evidence from which the jury could conclude that
Ms. Jones was contributorily negligent without relying on the table of
stopping distances. In Virginia, "a plaintiff’s violation of a statute reg-
ulating traffic ordinarily constitutes negligence." Thomas v. Settle,
439 S.E.2d 360, 363 (Va. 1994). Although the basis of the jury’s ver-
dict is uncertain, as the jury rendered only a general verdict, three wit-
nesses provided testimony from which the jury could infer that Ms.
Jones was speeding immediately prior to the accident.4 While negli-
gence per se will not bar recovery "unless the violation was [also] a
proximate or concurring cause that contributed directly to the acci-
dent," id., that determination is reserved for the jury. The preponder-
ance of the evidence presented at trial indicates that Ms. Jones
attempted to avoid the accident by swerving rather than braking, from
which the jury could reasonably infer that Ms. Jones was indeed oper-
ating her car at a speed that precluded braking to avoid the accident,
and that therefore Ms. Jones’s excessive speed was the proximate
cause of the accident.5 In light of evidence from which the jury could
have concluded that Ms. Jones was negligent per se, we find her case
  4
     For her part, Ms. Jones testified only that she had verified that she
was driving at the speed limit shortly before the accident, and could not
recall her speed at the time Mr. Griffey began his turn.
   5
     While not rising to the level of negligence per se, we further note that
there is testimony from which the jury could reasonably have found that
Ms. Jones failed to maintain a proper lookout, which inhibited her ability
to avoid the collision.
8                          JONES v. GRIFFEY
was not seriously prejudiced by the erroneous instruction regarding
stopping distances.

                                 V.

    For the foregoing reasons, the judgement appealed from is

                                                       AFFIRMED.
