How Now, Black Cow? Supreme Court Releases 4 Unpublished Orders

Posted on November 2, 2009 by Jay O'Keeffe

The Supreme Court of Virginia released four unpublished orders on Friday. Steve Emmert has a fun write-up over at his website. The discussion of Browning v. East alone makes it worth reading. Here's a preview:

This is a vehicular-collision appeal, but it really-most-sincerely isn’t your ordinary collision case. The driver of the only vehicle involved struck a stray cow on a dark country road one night. At trial, the defense offered a full set of contributory-negligence instructions, including the duty to keep a lookout. The defense argued that an ordinarily attentive driver should have been able to see the cow standing in the road in plenty of time to avoid hitting it.

The jury bought that argument, and returned a defense verdict. The plaintiff then undertook the arduous chore of convincing an appellate court that contrib wasn’t a legitimate jury issue in this case. She argued that the only evidence about the collision in the record was from her – and she testified that she hadn’t seen the cow until it was 30 to 40 feet away. Given the statute that requires cars to have headlights that illuminate objects 350 feet away, and the fact that the driver had acknowledged in her deposition that she was driving 57-60 mph in a 55 zone (for shame!), the defense is feeling pretty good about its chances on appeal.

 Get ready for a surprise or two . . . .

The cow, of course, was black. Black Angus, actually, like the bovine below. But that's not the surprise.

Update: Alan Cooper from the VLW Blog chimes in with a piece on the subject, complete with a link to the Browning order. 

Having read the order, I am a little surprised that it wasn't published. Browning is nine pages long. It was decided by a split court; Justice Goodwyn dissents, but does not write to explain his reasoning. In that regard, the case reminds me of the recent Zapata decision, also unpublished, and also decided over a naked dissent (that time from Justice Kinser, if I remember correctly).

If the Justices themselves are split over a decision, it seems like a published disposition would be helpful to the bar almost by definition.

As to the merits, the Court focuses on the lack of proximate causation between any contributory negligence and the accident. That seems like the correct analysis. Proximate causation is an important limiting factor in states like Virginia that still adhere to a pure contrib doctrine. Fun bit of trivia: according to Wikipedia, Virginia is one of five states/jurisdictions that still recognize contributory negligence as a complete defense. The others are Saudi Arabia, Somalia, Nigeria, and Kazakhstan Maryland, Alabama, North Carolina, and the District of Columbia.

Practice point: when warding off a contrib defense, focus on proximate causation.

Finally, looping back to our earlier discussion of assignments of error, it's worth noting that the assignments in Browning are relatively skeletal:

  • The trial court erred in granting jury instructions relating to contributory negligence (Instructions 16, 17, 18, 19, 20, and 21).
  • The trial court erred in granting the defendant's motion in limine to exclude from the jury evidence of the defendant's prior acts of allowing his livestock to stray at other locations.

I would not be confident that those assignments are sufficiently specific. Evidently, they were good enough to get the job done here.

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New Virginia Supreme Court Opinion: Fultz v. Delhaize Am., Inc.

Posted on July 11, 2009 by Jay O'Keeffe

The Supreme Court of Virginia pulls off a neat trick in Fultz v. Delhaize America, Inc. It hands down an opinion that's factually and doctrinally unremarkable--even boring--on its own terms, yet fascinating in the broader context of the current state of the law.

Doris Fultz, accompanied by her 3-year-old grandson, visited a grocery store's ATM. The ATM was bordered by horizontal metal bars about 5 inches off the ground, apparently to protect it from grocery carts. While Fultz was at the ATM, her grandson darted out. She reached for him and tripped over the bars, breaking her elbow.

Fultz sued the store's parent company, Delhaize. Delhaize contended that she was contibutorily negligent for failing to see an open and obvious hazard. The trial court agreed, and granted summary judgment in its favor.

Pretty standard stuff so far. And folks who have been paying even marginal attention to the Court for the past few years should have a pretty good idea where it's going with this one. Summary judgment for contrib as a matter of law? 7-0 reversal and remand, with another great warning about short-circuiting litigation.

 

So why is Fultz interesting?

  • It may help you dodge the ol' Twiqbal. The Court handed Fultz on June 4th--just over two weeks after we received the Supreme Court of the United States' remarkable opinion in Ashcroft v. Iqbal, which further "clarified" (read: heightened) federal pleading standards in the wake of Twombly. Iqbal is a huge deal. It explains Twombly, a 2007 case that has already been cited so many times that you can't Shephardize it. (You just get the "more than 20,000 hits--please restrict your search" message.) One of the trends to watch over the next few years will be the extent to which Twombly and Iqbal seep into state court trial practice and effectively heighten state court pleading standards, as crafty defense attorneys cite cases applying them to state court judges (such maneuver, to be known as a "Twiqbal"). And immediately on the heels of Iqbal, we get a stern opinion from the Supreme Court of Virginia cautioning trial courts about short-circuiting litigation. Of course, Fultz was decided on summary judgment, not demurrer. But it sure suggests that the evolution of these cases over the next few years will be fun to watch.
  • It's another arrow in the quiver. On a more practical level, Fultz is another case in the CaterCorp line. It gives us more language about how the Court is increasingly confronted with appeals in which a trial court short-circuited litigation. It also reiterates that summary judgment is a "drastic remedy." Fultz offers another tool for trial counsel resisting dispositive motions, and appellate counsel seeking to reverse summary dispositions.
  • Trial court reaction. Finally, as Steve Emmert notes, trial courts will probably react to Fultz by refusing to grant summary judgment in all but the most obvious cases. As he explains, that is consistent with Supreme Court case law, in which summary judgment is disfavored. Fultz will likely further erode the utility of summary judgment as a procedural tool in Virginia.

 

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