LAST CLEAR CHANCE

In the law oftorts, the doctrine that excuses or negates the effect of the plaintiff's contributorynegligenceand permits him or her to recover, in particular instances, damages regardless of his or her own lack of ordinary care.

The rule of last clear chance operates when the plaintiff negligently enters into an area of danger from which the person cannot extricate himself or herself. The defendant has the final opportunity to prevent the harm that the plaintiff otherwise will suffer. The doctrine was formulated to relieve the severity of the application of the contributory negligence rule against the plaintiff, which completely bars any recovery if the person was at all negligent.

There are as many variations and adaptations of this doctrine as there are jurisdictions that apply it. Four different categories have emerged, which are classified as helpless plaintiffs, inattentive plaintiffs, observant defendants, and inattentive defendants.

Helpless Plaintiffs

Where the plaintiff's previous negligence has placed him or her in a position from which the person is powerless to extricate himself or herself by the exercise of any ordinary care, and the defendant detects the danger while time remains to avoid it but fails to act, the courts have held that the plaintiff can recover.

There must be proof that the defendant discovered the situation, had the time to take action that would have saved the plaintiff, but failed to do what a reasonable person would have done. In the absence of any one of these elements, the courts deny recovery.

If the defendant who has a duty to discover the plaintiff's peril does not do so in time to avoid injury to the plaintiff, some courts have permitted recovery under the rationale that the defendant's subsequent negligence is the proximate cause, or direct cause, of the injury, rather than the contributory negligence of the plaintiff. The defendant must have been able to have discovered the peril through appropriate vigilance so as to avoid its harmful consequences to the plaintiff.

Inattentive Plaintiffs

In another group of cases, the plaintiff is not helpless but is in a position to escape injury. The person's negligence consists of failure to pay attention to his or her surroundings and detect his or her own peril. If the defendant discovers the plaintiff's danger and inattentiveness, and is then negligent, a majority of courts allows the plaintiff to recover. Some courts hold that the defendant must actually recognize the plaintiff's danger and inattention. Most courts apply a more objective standard; they require only that the defendant discover the situation and that the plaintiff's peril and inattentiveness be evident to a reasonable person. The discovery can be proved by circumstantial evidence. There is an additional essential qualification that the defendant can frequently, reasonably assume until the last moment that the plaintiff will protect himself or herself, and the defendant has no reason to act until he or she has some notice to the contrary.

If the defendant does not discover the plaintiff's situation—but could do so with appropriate vigilance—neither party can be viewed as possessing the last clear chance. The plaintiff is still in a position to escape, and his or her inattentiveness persists until the juncture of the accident, without the interval of superior opportunity of the defendant. The plaintiff cannot reasonably demand of the defendant greater care for his or her own protection than that which he or she as plaintiff would exercise for himself or herself. Nearly all of the courts have ruled that, in this situation, there can be no recovery.

Observant Defendant

The observant defendant is one who actually sees the plaintiff in time to act so as to avoid the harm and assumes that a duty exists to act under the circumstances. The person perceives the plaintiff's helpless or inattentive condition, but thereafter is negligent in failing to act so as to prevent the plaintiff's harm. In most instances, the defendant's conduct is itself the cause of the plaintiff's danger, but this is not a requirement so long as a duty to act exists.

The plaintiff must prove that the defendant actually saw him or her and that a reasonable person would have known that he or she was inattentive or helpless. This is determined by an objective test entailing circumstantial evidence of the defendant's state of mind. The defendant cannot assert unawareness of the plaintiff's powerlessness or inattentiveness when that fact would have been evident to any observer.

Inattentive Defendant

The inattentive defendant is one who fails to fulfill the duty to maintain a surveillance in order to see the plaintiff in time to avoid the harm, perceive the person's helpless or inattentive condition, and thereby exercise reasonable care to act in time to avoid the harm. Due to the defendant's negligence, however, he or she fails to see the plaintiff in time, and injury occurs.

Application of Doctrine

There are four possible cases in which the rule of last clear chance can be applied.

The typical last clear chance situation involves the helpless plaintiff against the observant defendant, and all courts that accept the doctrine will apply it. The few courts that do not recognize the rule attain the same result under the doctrine of willful and wanton misconduct.

In the helpless plaintiff-inattentive defendant and the inattentive plaintiff-observant defendant cases, most jurisdictions that acknowledge the rule apply it.

Where the case entails the inattentive plaintiff against the inattentive defendant, the justifications for the rule are eliminated, and nearly all jurisdictions refuse to apply it.

The defendant's negligence must occur subsequent to that point in time when the person discovered or should have discovered the plaintiff's peril.