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What is the “last clear chance” doctrine?

Posted by Neil Shouse | Sep 06, 2019 | 0 Comments

car accident

The “last clear chance” doctrine is a legal rule that says:

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

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 show this, the plaintiff must prove five things. These are:

  1. the plaintiff put himself in a situation of danger because of his own negligence,
  2. the plaintiff, though, could not avoid the dangerous situation,
  3. the defendant was aware of the danger and could have reasonably avoided it,
  4. the defendant, nevertheless, failed to avoid the danger, and
  5. as a result, the plaintiff was 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 accident, but she failed to do so.

Under the last clear chance doctrine, Mike can still receive compensation for his neck injury – even though he partially caused the accident.

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 that negligence was a cause of the accident/injury,
  • then the plaintiff cannot recover any damages from the defendant(s).

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 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.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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