Virginia Supreme Court Struggles with Contributory Negligence as a Matter of Law and Illustrates the Importance of Some Support for a Jury’s Decision

Martin Schubert, Esquire
November 18th, 2014
By: Martin Schubert, Esquire

As is customary, the jury rendered a verdict in this wrongful death action arising out of a railroad crossing collision. A dump truck was struck by a train. The jury found for the estate of the driver and the trial court entered an order in conformance with that verdict. It is the subsequent history that becomes interesting. On June 5, 2014, the Virginia Supreme Court reversed, finding contributory negligence on the part of the decedent, as a matter of law. RGR, LLC v. Settle, 288 Va. 1, 758 S.E.2d 215 (2014) (RGR I). That opinion was subsequently withdrawn and a new opinion reversing that first opinion was entered on Oct. 31, 2014. RGR, LLC v. Settle, 2014 Va. LEXIS 161 (2014) (RGR II). Both majority opinions were written by the same justice and both opinions had dissents.

The facts are as follows. A railroad track ran across a private piece of property and the railroad had a 30 foot right of way across that private property. The Defendant, RGR, LLC, was in the business of unloading lumber from the cars and reloading it onto trucks. RGR stacked lumber 23 feet from the center of the track near the crossing. The decedent was operating a loaded gravel dump truck and was approaching the subject railroad crossing. The decedent had travelled the subject route at least six times that day. Several witnesses claimed they did not hear the horn of the train. RGR moved to strike at the end of the Plaintiff’s case, arguing that the failure to look prior to crossing the tracks was contributory negligence as a matter of law. That motion was denied and post-trial motions were also denied. The trial court entered an order memorializing the jury’s finding of negligence but no contributory negligence.

On appeal, the Supreme Court in RGR I stated: “Repeatedly, we have said that a railroad track is a proclamation of danger and the operator of a vehicle approaching a grade crossing is required to look and listen at a time and place when both looking and listening will be effective, intelligently using both eyes and ears.” “Further, [i]f a traveler drives blindly upon a crossing whether his view is obstructed or unobstructed, takes no precautions for his safety and is injured, his negligence will preclude any recovery on his part.” Based on this law, the Court reversed, finding contributory negligence as a matter of law. Interestingly, the Supreme Court also relied on a case that was “strikingly” similar to the facts of RGR, LLC in which it also concluded that the driver was contributory negligent as a matter of law.

In RGR I, the Supreme Court also rejected the plaintiff’s argument that if the driver had stopped, he could not have accelerated quickly enough to clear the crossing if a train was coming at this later point. The Court reasoned that the driver could have approached slowly and stopped in time if a train was in fact coming.

The dissenting opinion in RGR I stated that facts existed to support the jury finding and it was a question of fact for the jury to determine whether contributory negligence existed.

In RGR II, the Supreme Court reversed itself and reinstated the jury finding of no contributory negligence. It re-evaluated the facts and determined that facts existed to support the jury verdict. Several witnesses testified that they did not hear the train’s horn. The Court stated that less care is required when no warning of a train exists. Additionally, other drivers waved him across, and being unable to see due to the lumber stacks, a jury could find this action reasonable. Even if he had seen the train upon emerging from the lumber stacks, the driver’s reaction time and speed would have carried him into the tracks. This appears to contradict the Court’s prior reasoning in RGR I. The Court reasoned that stopping and looking has never been a requirement of the law. The dissenting opinion agreed with the original majority finding contributory negligence as a matter of law.

The RGR opinions illustrate the difficulty of taking a case from the jury on the issue of contributory negligence. If any facts exist at all to support a finding, the matter will have to be decided by the jury. That is not the same as favorable evidence to support contributory negligence. Merely having better evidence and arguments may not be enough. Thus, having good evidence on contributory negligence will not help a losing defendant on appeal, if some evidence supports the jury’s decision. The lesson, contributory negligence as a matter of law is unlikely in all but the rarest and most certain of cases.

Disclaimer

This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More