By Cory Bilton

In its latest release of opinions, the Supreme Court of Virginia issued a new opinion in the RGR v. Settle case (which I’ll call “Settle II”), reaching the opposite conclusion of the prior decision. Back in June, I wrote that the Court’s first opinion in RGR v. Settle (“Settle I”) reached an untenable position. Settle I held that the victim in the case was contributorily negligent as a matter of law because “no reasonable minds could differ” on the matter, despite the fact that there was a two-justice dissent. Now, Settle II spills many bytes on an issue that was not even mentioned in Settle I. In my opinion, there is no way to reconcile these two opinions with legal reasoning alone. Instead, to me this is a candid view into the world of judging. Turns out justices are just people, too.

A Court Changes Its Mind

A court doesn’t like to change its mind. One of the bedrock principles of the common law, stare decisis, literally means “to stand by things decided.” But in Settle II, the Supreme Court of Virginia changed its mind from the decision issued just five months ago. Chief Justice Kinser wrote the majority opinion in both Settle I and Settle II. Justice Millette also changed his mind and joins the majority in both opinions. So the decision-mix goes from 5-2 finding the victim contributorily negligent as a matter of law in Settle I, to 4-3 finding the victim not contributorily negligent as a matter of law in Settle II. That is pretty amazing.

In addition to changing its mind on the contributory negligence issue, Settle II goes on for many pages arguing an issue that didn’t even come up in Settle I. A major issue in Settle II is whether the landowner, RGR, LLC, owed any duty at all to the victim that was driving a dump truck on an adjoining private road. Legally, this issue should have preceded the contributory negligence issue. In other words, since Settle I only discussed the victim’s contributory negligence, a student of the law might have assumed that the justices were in agreement that RGR, LLC was negligent. If RGR, LLC was not negligent, we don’t even need to discuss Settle’s possible contributory negligence. But in Settle II, we’ve actually taken a step backward, because RGR’s duty is the central issue.

Also noteworthy is that Settle II is a mammoth opinion. It weighs in at 83 pages. Settle I was less than 1/3^rd the size, at only 27 pages. As I read through the whole opinion, many of the points seemed repetitive and belabored. I think the length of the opinion is another indication that Justice Kinser felt the need to justify the changed outcome, as well as possibly an indication that the debate was heated among the justices behind closed doors.

Better Decision on Contributory Negligence

The good news is that the bad precedent on contributory negligence that would have resulted from Settle I has been corrected. The majority in Settle II is now of the belief that there was sufficient conflicting factual evidence for a jury to consider and decide the matter. For those of you that missed reading Settle I (which has been taken down from the SCV’s website, by the way), the majority there actually decided contributory negligence as a matter of law by reviewing the facts of the case. To me, that sets a bad precedent right there. Although Settle I attempted to cobble together a principled reason for disagreeing with the jury about the conclusion to be drawn from the facts, I couldn’t see the principle. It seems as though Chief Justice Kinser and Justice Millette also felt there was something amiss, too. Settle II basically defers to the trial judge and the jury on the contributory negligence issue.

New Decision on Duty Owed by a Landowner to Adjacent Road User

Settle II breaks new ground on the issue of whether RGR owed any duty to Mr. Settle at all. RGR occupied the property that abutted both the railroad tracks and the private road that Mr. Settle was driving upon. RGR stacked lumber close to the tracks on the railroad’s right-of-way, obscuring the view from the private road. But the lumber itself wasn’t on the private road. While driving on the private road, Mr. Settle wasn’t on RGR’s property. So we have a situation where RGR is actually imposing on the rights of the railroad by stacking lumber on land that is within its right-of-way, but the harm occurs to Settle on the private road, because the lumber obscures his view of the approaching train. It is this set up that spawns this entire discussion.

If we base RGR’s negligence upon the foreseeability that the lumber might obscure the view of a user of the roadway, then RGR is negligent. But on the other hand, if we apply traditional analysis of the duty of landowners (e.g. trespassers, licensees, invitees, etc; Mr. Settle wasn’t any of these things), then RGR owes no duty to Mr. Settle. To me, this represents the break between the majority and the dissent.

In more precise terms, the majority states that RGR’s duty is to “exercise ordinary care in the use and maintenance of its property to prevent injury or death to others.” The majority says that the holding is not specifically aimed at obstructing sight lines. Instead, whether obstructing sight lines is a failure of ordinary care depends on situation. The dissent says that the majority fails to define the relationship between RGR and Mr. Settle that would be the basis for any duty. In somewhat alarmist tones, the dissent says that the majority’s decision does away with distinctions such as trespasser, licensee, and invitee altogether. Now any future plaintiff could argue that a landowner owes a general duty of ordinary care to everyone.

This duty issue is thorny. My experience tells me that what RGR did walks like negligence and quacks like negligence, so it’s probably negligence. But negligence principles covering the acts of one person against another are disjointed from negligence principles covering the acts of a landowner, through the land itself, against another person. This case highlights that there is no smooth transition between the two sets of principles. I think the majority came to the right result, but I admit the line is a little blurry to me.   I applaud them for changing their mind on the contributory negligence issue. Clearing up some of the unresolved duty questions will be the job of future decisions. In the meantime, the justices have hopefully settled the Settle case.

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