UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT W. BELVIN,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
and No. 02-1438
DAVID B. KELLY; C. E. SELLARS,
a/k/a Cornis Earl Sellars; HARTFORD
ACCIDENT AND INDEMNITY COMPANY;
TWIN CITY FIRE INSURANCE COMPANY,
Defendants.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca Beach Smith, District Judge.
(CA-00-35-4)
Submitted: February 18, 2003
Decided: April 4, 2003
Before WILKINS, Chief Judge, MOTZ, Circuit Judge, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
2 BELVIN v. UNITED STATES
COUNSEL
Ralph Rabinowitz, RABINOWITZ, SWARTZ, TALIAFERRO,
LEWIS, SWARTZ & GOODOVE, P.C., Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Susan L. Watt,
Supervisory Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Robert W. Belvin appeals a judgment against him in his Federal
Tort Claims Act suit arising out of an automobile accident involving
himself and an Internal Revenue Service (IRS) employee. See 28
U.S.C.A. §§ 2671-80 (West 1994 & Supp. 2002). Finding no error,
we affirm.
I.
The accident at issue occurred on Interstate 64 in Hampton, Vir-
ginia. While traffic was flowing at approximately 55 to 60 miles per
hour, a ladder fell off a truck ahead of Belvin’s minivan. Another
vehicle ran over the ladder, and Belvin applied his brakes "suddenly
and as hard as [he] could" to avoid running over it himself. J.A. 149.
Five to six car lengths behind Belvin was Cornis Earl Sellars, who
was driving in the course of his employment with the IRS. Although
Sellars braked quickly in an attempt to avoid a collision, his vehicle
struck Belvin’s. Belvin subsequently sued the United States, claiming
that Sellars’ negligence proximately caused the accident.
Following a bench trial, the district court awarded judgment to the
Government. The court found as fact that both Belvin and Sellars
BELVIN v. UNITED STATES 3
acted reasonably under the circumstances. Specifically, the court
found no evidence of excessive speed, improper lookout, or failure to
keep a reasonable distance or to take reasonable evasive action that
could have avoided the accident. The court also applied the sudden
emergency doctrine, which excuses the driver of an automobile from
negligence liability if, "without prior negligence on his part, [he] is
confronted with a sudden emergency and acts as an ordinarily prudent
person would have done under the same or similar circumstances."
Pickett v. Cooper, 116 S.E.2d 48, 51 (Va. 1960).*
II.
Belvin argues that the district court erred in applying the sudden
emergency doctrine. Belvin further contends that because Sellars hit
him from behind, he made out a prima facie case of negligence under
Virginia law, and the Government then had the burden of presenting
evidence that Sellars was not negligent. See Watford v. Morse, 118
S.E.2d 681, 683 (Va. 1961). We need not decide whether the district
court mistakenly applied the sudden emergency doctrine or whether
Belvin made out a prima facie negligence case, because the finding
by the district court that Sellars was not negligent moots both of those
issues.
Belvin further maintains that on the undisputed facts, Johnson v.
United States, 528 F.2d 489 (4th Cir. 1975), entitled him to judgment
as a matter of law. We conclude that Johnson is distinguishable from
the present case, and that the question of Sellars’ negligence was
properly one for the fact finder.
In Johnson, the plaintiff and defendant were waiting in their vehi-
cles at a red light, with the defendant directly behind the plaintiff.
When the light turned green, both parties began to move toward the
intersection. However, through a mechanical error, the light turned
red again a split-second after turning green. The plaintiff stopped
abruptly in response to the change, and the defendant’s vehicle col-
lided with the plaintiff’s. This court noted that "under Virginia law,
the issue of negligence is normally a matter for the trier of fact" and
*The parties agree that Virginia law provides the applicable rules of
decision. See 28 U.S.C.A. § 1346(b)(1) (West Supp. 2002).
4 BELVIN v. UNITED STATES
that "the reasonable distance to be maintained between vehicles
depends upon the facts in each particular case." Johnson, 528 F.2d at
491. We concluded, however, that the facts there presented the "rare
rear-end collision case" in which the only reasonable inference was
that the defendant had failed to take reasonable measures to prevent
the collision. Id.
Johnson is distinguishable from the present case because what
made Johnson the "rare rear-end collision case" that could be decided
as a matter of law was the speed of the vehicles involved. When traf-
fic is proceeding at a very slow pace, keeping a modest distance from
the next vehicle and a reasonable lookout is sufficient to prevent rear-
end collisions from occurring, regardless of how suddenly the lead
vehicle stops. The mere fact that the collision in Johnson occurred—
in the absence of any outside force bearing on the defendant’s vehicle
—mandated the conclusion that the defendant’s negligence caused it.
The speeds involved in the present case, in contrast, make the reason-
ing in Johnson inapplicable. We cannot say as a matter of law that
Sellars’ failure to avoid Belvin’s vehicle when Belvin applied his
brakes suddenly in normal interstate traffic could be due only to Sel-
lars’ failure to keep a reasonable distance or a proper lookout. The
issue of whether Sellars acted reasonably was properly one for the
fact finder to decide.
III.
In sum, we affirm the judgment of the district court in favor of the
Government.
AFFIRMED