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The last clear chance doctrine is the legal rule that:
- in personal injury cases, in which both you and defendant were responsible for causing an injury/accident,
- you can still recover damages from the defendant, if the defendant had a chance to avoid injuring you 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 you may recover damages in a personal injury case even if you were 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 you were negligent in an accident,
- you 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, you must show that, between you 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, you must prove five things. These are:
- you put yourself in a situation of a position of peril because of your own negligence,
- you could not avoid the dangerous situation caused by the defendant’s subsequent negligent act (you were a “helpless plaintiff”),
- the defendant had actual knowledge of the perilous situation and could have reasonably avoided your peril with the exercise of ordinary care,
- though the defendant had the last clear chance, they failed to avoid the danger, and
- the negligence of the defendant was the proximate cause of you 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 you (the plaintiff) to prove that the defendant had the last clear chance to avoid injuring you.
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:
- If the defendant was observant – knew what was going on but failed to stop it – and you were helpless to stop the danger, the defendant is always liable.
- If the defendant was observant, and you were merely inattentive to the danger, the defendant is usually still liable.
- If the defendant was inattentive to the danger, they are usually still liable as long as you were helpless.
- If both the defendant and you 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 you were found to have been negligent in a case – even in the smallest of ways,
- and your negligence was a cause of the accident/injury,
- then you 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.
For more discussion, see our page on the difference between contributory and comparative negligence.
What are comparative fault laws?
Under comparative fault laws, also sometimes called comparative negligence laws, you can still recover damages even when you are partially to blame for the accident.
In a personal injury lawsuit, the defendant claims your own negligence caused or contributed to your own harm.
Once the defendant makes that claim, the jury would then decide what percentage of fault is due to your own negligence. That percentage will reduce your overall award for damages.
States using comparative negligence laws, follow either:
- pure comparative negligence laws, or
- modified comparative negligence laws.
Under pure laws, if you are primarily responsible for an accident, you can still get some amount of award (reduced by your 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, you cannot collect any damages if you are 50% or more at fault for the accident.
- In a 51% rule state, like Kansas, you cannot collect any damages if you are 51% or more at fault for the accident.
Aspect | Contributory Negligence | Comparative Negligence |
Definition | You are barred from recovering damages if you contributed to your own injury in any way. | You can recover damages even if you are partially at fault for your own injury, but the amount of damages is reduced based on your percentage of fault. |
Fault Allocation | If you are even 1% at fault, you cannot recover any damages. | Damages are allocated based on the percentage of fault attributed to each party. |
Jurisdictions | Only a few jurisdictions, such as Alabama, Maryland, North Carolina, Virginia, and Washington D.C. | Most U.S. states use this doctrine, with variations like pure comparative negligence (like in California) and modified comparative negligence. |
Fairness | Harsh and unfair, as it completely bars recovery even if the defendant is primarily at fault. | Reasonable and fair, since it allows you to recover damages in proportion to the defendant’s fault. |
Example | If you are hit by a car while jaywalking, you are contributorily negligent and barred from recovering damages, even if the driver was speeding. | If you are hit by a car while jaywalking, and you are 30% at fault and the driver 70% at fault, you can still recover 70% of your damages. |
What is the law in California?
Since California is a comparative negligence state, it does not follow the “last clear chance” doctrine.
As a pure comparative negligence state, California allows you to recover damages even if you were primarily responsible for your injuries. However, your damages will be reduced by your own degree of fault.
California used to be a contributory negligence state and used to follow the “last clear chance” doctrine. Then in 1975, the California Supreme Court expressly replaced the state’s contributory negligence law with the current comparative fault law.
Legal References
- Case of Davies v. Mann, 152 Eng. Rep. 588 (1842), an English case in common law.
- Nationwide Mut. Ins. Co. v. Anderson (2004), 160 Md. App. 348.
- Daniels v. City & County of San Francisco (California Supreme Court, 1953), 40 Cal.2d 614.
- Lopez v. Ormande (California Court of Appeals, 1968), 258 Cal.App.2d 176.
- Vernon v. Crist (1977) 77 291 N.C. 646.
- Beasley v. Standard Paving & Engineering Co., (Court of Appeals of Kentucky, 1974) 511 S.W.2d 667.
- Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829, 532 P.2d 1226.