On October 31, 2014, a sharply divided Virginia Supreme Court decided in favor of Plaintiff on rehearing of a wrongful death appeal arising out of a truck-train collision, RGR, LLC v. Settle, No. 130633, upholding a $3,085,205.48 jury verdict. On August 1, 2014, the Court withdrew its earlier unanimous opinion in favor of Defendant rendered on June 5, 2014. Id. at *1 n.1.
The Settle 4-3 majority held: (1) “the circuit court did not err in holding that RGR had ‘the duty to exercise reasonable care in the use and maintenance of its [private] property to prevent injury or death or others’,” id. at *13-29; (2) “the circuit court did not err in refusing to find Settle contributorily negligent as a matter of law,” and in allowing the jury to decide issue instead, id. at 29-46; and (3) “the circuit court did not err in refusing to grant RGR’s motions to strike and set aside the verdict on the issue of proximate causation,” as “the evidence in this case is sufficient to support the conclusion that Settle’s view of the approaching train was obstructed by the lumber stacks and that the location of the lumber stacks was therefore a proximate cause of the collision.” Id. at *46-48. However, Settle also held that “the circuit court erred in its determination of the total sum from which the [joint tortfeasor] settlement amount would be deducted,” since Virginia statute requires that the “settlement amount be subtracted from the $2.5 million [principal] damages award before calculating the prejudgment interest also awarded by the jury.” Id. at *48-53.
The lengthy three-Justice dissent in Settle urges that: (1) “RGR owed no legal duty to Settle under Virginia law”; and (2) “Settle was contributorily negligent as a matter of law”. Id. at *55 and 55-93. The dissent rued what it term “Majority’s Adoption of Broad Maxim as Duty,” compare id. at *65-74 with id. at *55-65; consistent with legal commentators viewing Settle as a broadening of tort duty and liability.