There is a doctrine recognized in Virginia known as “Last Clear Chance“. It applies mostly in auto crash cases but not exclusively there. The doctrine says two things. First of all, if the plaintiff negligently placed himself in a position of danger from which he is physically unable to remove himself and the defendant is also negligent and could have avoided the crash by using ordinary care, then the plaintiff may recover. That is to say the plaintiff’s contributory negligence will not be a bar to his recovery.
The other prong of the Last Clear Chance Doctrine involves what is called “the inattentive plaintiff”.
The inattentive plaintiff is one who negligently places himself in a position of danger and is physically able to remove himself but is unaware of the danger. In that case if the defendant actually saw the plaintiff and realized or should have realized the danger to the plaintiff and could have avoided the crash by exercising ordinary care, then the contributory negligence of the plaintiff will not bar his recovery.
Last Clear Chance Auto Crashes-Two Prongs
As such the two prongs of this Last Clear Chance Doctrine are based on the helpless plaintiff and then the inattentive plaintiff. The elements of each are different.
As might be expected however, there are some curve balls. In Pack v. Doe, 236 Va. 323, 330 (1988), the court dealt with a situation where the plaintiff was drunk, unconscious and fell into a lane of traffic. There must be some evidence as to how he came to that position of peril. In any event his being drunk and unconscious is not physical incapacity. Physical incapacity must be a condition resulting from non-negligent, non-intentional natural causes. Such things as a seizure, a stroke or a heart attack would be a non-negligent, non-intentional natural cause.
Last Clear Chance In Auto Crashes-Not Supersede Contributory Negligence
In Williams v. Harrison, 255 Va. 272, 276 (1998), the court noted that Last Clear Chance does not supersede contributory negligence. That is, a negligent plaintiff may only recover if his negligence became a remote cause of the crash. If it remained a proximate cause of the crash as of the time of the crash, then the claim is barred. To put it another way, if the opportunity to avoid the crash is as available to the plaintiff as it is to the defendant, then the plaintiff’s negligence is a proximate cause and not a remote cause.
A year later in the case of Alfonso v. Robinson, 257 Va. 540, footnote 2, (1999), the court noted that both drivers were guilty of such negligence as officially contributed to the crash and therefore the doctrine of Last Clear Chance was not applicable. In Alfonso, a tractor trailer driver experienced a stall of his vehicle. He was able to steer the truck into the right-hand lane of the highway near a rest area. He failed to activate his flashing lights. The defendant failed to use any warning flares or reflective triangles as required. He was then rear-ended. The court held that a jury issue existed as to whether or not that constituted willful and wanton negligence. That may have barred the defense of contributory negligence.
The Doctrine of Last Clear Chance can save a plaintiff’s case in some circumstances. However the doctrine is narrowly applied.
Call, or contact us for a free consult. Also for more info on last clear chance auto crashes see the Wikipedia pages. Also see the post on this site dealing with contributory negligence issues
