What Is the “Last Clear Chance” Doctrine?

Posted on September 12, 2021

The last clear chance doctrine is the legal rule that:

1. in personal injury cases, in which both the plaintiff and defendant were responsible for causing an injury/accident,
2. the plaintiff can still recover damages from the defendant, if the defendant had a chance to avoid injuring the plaintiff in the final moments before the accident.

This doctrine is used in states that use contributory negligence rules. These laws state that someone who was even a little at fault for an accident, even a plaintiff, cannot recover any damages in a personal injury case.

The doctrine of last clear chance, therefore, is seen as an exception to contributory negligence laws.

Other terms for this doctrine are the

• the last clear chance exemption; or
• the doctrine of last opportunity

Note that contributory negligent laws are different than comparative fault laws. These say that a plaintiff may recover damages in a personal injury case even if the plaintiff was partially at fault for causing the injury/accident.

What does the last clear chance doctrine say?

The last clear chance doctrine says that:

• in personal injury cases,
• even if the plaintiff was negligent in an accident,
• he can still recover damages, if the defendant could have avoided the accident by using ordinary and reasonable care.

While the specific language of this rule may vary from state to state, the plaintiff must show that, between him and the defendant, the defendant was the party who had the last opportunity to avoid the accident causing injury.

In order to benefit from the last clear chance rule, the plaintiff must prove five things. These are:

1. the plaintiff put himself in a situation of a position of peril because of his own negligence,
2. the negligent plaintiff, though, could not avoid the dangerous situation caused by the defendant’s subsequent negligent act (“helpless plaintiff”),
3. the defendant had actual knowledge of the perilous situation and could have reasonably avoided the plaintiff’s peril with the exercise of ordinary care,
4. though the defendant had the last clear chance, he/she failed to avoid the danger, and
5. the negligence of the defendant was the proximate cause of the plaintiff being injured.

Consider, for example, a situation in which Mike is driving down a two-lane highway. Becky is driving in the opposite direction. Mike is groggy and he is fighting to stay awake. His car starts to snake along the road.

Becky sees all that is happening in front of her. She also sees Mike’s car start to curve in her direction. She has plenty of time to turn her car to avoid Mike, but she does not do so. As a result, the cars collide, and Mike hurts his neck.

Here, both Mike and Becky are negligent. Mike was driving while almost sleeping and Becky failed to turn her car out of the way. However, note that Becky had the “last clear chance” to avoid the car accident, but she failed to do so.

With the application of the last clear chance doctrine, Mike can still receive compensation for his neck injury – even though he partially caused the accident as an inattentive plaintiff. Becky was a negligent defendant.

Who has the burden of proving last clear chance doctrine?

The burden is on the plaintiff to prove that the defendant had the last clear chance to avoid injuring the plaintiff.

What variations to the last clear chance doctrine exist?

There are generally four variations of the last clear rule in jurisdictions that recognize the doctrine:

1. If the defendant was observant – knew what was going on but failed to stop it – and the plaintiff was helpless to stop the danger, the defendant is always liable.
2. If the defendant was observant, and the plaintiff was merely inattentive to the danger, the defendant is usually still liable.
3. If the defendant was inattentive to the danger, he/she is usually still liable as long as the plaintiff was helpless.
4. If both the defendant and plaintiff were inattentive, then the last clear chance doctrine does not apply at all. The defendant is not liable.

What are contributory negligence laws?

The last clear chance doctrine is used in states that follow contributory negligence laws.

Under these laws:

• if a plaintiff was found to have been negligent in a case – even in the smallest of ways,
• and the negligence of the plaintiff was a cause of the accident/injury,
• then the plaintiff cannot recover any damages from the defendant, even if the defendant’s negligence did in fact contribute to the accident as well.

These laws are seen as harsh on plaintiffs and pure contributory negligence laws are only followed in a few states. Some of these include:

• Alabama,
• Maryland, and
• North Carolina.

What are comparative fault laws?

Under comparative fault laws, also sometimes called comparative negligence laws, a person injured in an accident can still recover damages even when he is partially to blame for the accident.

In a personal injury lawsuit, the defendant claims the plaintiff’s own negligence caused or contributed to his own harm. Once the defendant makes that claim, the jury would then decide what percentage of fault is due to the plaintiff’s own negligence. That percentage will reduce the plaintiff’s overall award for damages.

States using comparative negligence laws, follow either:

• pure comparative negligence laws, or
• modified comparative negligence laws.

Under pure laws, if the plaintiff is primarily responsible for an accident, he can still get some amount of award (reduced by the plaintiff’s own fault). California follows pure comparative negligence tort laws.

States following modified comparative negligence laws, use either a 50% rule or a 51% rule.

In a 50% rule state, like Nevada, the plaintiff cannot collect any damages if the plaintiff is 50% or more at fault for the accident.

In a 51% rule state, like Kansas, the plaintiff cannot collect any damages if the plaintiff is 51% or more at fault for the accident.

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