The Supreme Court of Virginia released four unpublished orders on Friday.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.
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 In that regard, the case reminds me of the recent Zapata decision, also unpublished, and also decided over a naked dissent (that time from Justice Kinser, if I remember correctly).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.