The Last Clear Chance Doctrine
By: Brian R. Taylor
In North Carolina, the analysis of a plaintiff’s negligence claim does not stop with plaintiff proving the essential elements of negligence: “that the defendant owed the plaintiff a legal duty, that the defendant breached that duty, and that plaintiff’s injury was proximately caused by the breach.” Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002). Additional investigation is required to determine whether the plaintiff was negligent, and whether the plaintiff’s negligence, even in the slightest amount, contributed to the plaintiff’s injuries. In North Carolina, a plaintiff cannot prevail if the evidence reveals that he was contributorily negligent. Sims v. Graystone Ophthalmology Assocs., P.A., 234 N.C. App. 65, 68, 757 S.E.2d 925, 927 (2014).
It is a common misconception, however, that the investigation into whether a plaintiff can recover for personal injuries arising from a negligence claim stops with a finding that the plaintiff was contributorily negligent. This is where the last clear chance doctrine comes into play. The last clear chance doctrine allows a contributorily negligent plaintiff to recover against a negligent defendant despite the contributory negligence bar, but only if the plaintiff can prove by a preponderance of the evidence that the defendant had the last clear opportunity to avoid the injury causing event. North Carolina courts adopted the last clear chance doctrine in order to mitigate the harsh effects that contributory negligence law has on a plaintiff’s personal injury claims.
North Carolina courts have established an element-based test to determine whether the last clear chance doctrine applies. Only by satisfying all four of the below elements will a plaintiff succeed in his assertion of the last clear chance doctrine.
ELEMENT # 1: The plaintiff negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care.
Our courts have held that a plaintiff is in a position of helpless peril when that plaintiff’s prior contributory negligence has placed him in a position from which she is powerless to extricate herself. Williams v. Odell, 90 N.C. App. 699, 704, 370 S.E.2d 62, 66 (1988). The key inquiry with regard to the first element is whether a reasonable plaintiff would have the ability to both understand the danger he is in and to extricate himself from that danger.
The North Carolina Court of Appeals addressed this element in Williams v. Odell, which is cited above. In Williams, the decedent was involved in a minor automobile accident that occurred on the entrance ramp to an expressway. Following the minor accident, she parked her automobile on the expressway in the path of oncoming vehicles. The decedent stood near the back of her automobile and faced oncoming traffic. She even observed several vehicles harshly apply their brakes to avoid colliding with her vehicle. However, she did not move. The defendant in the case approached the expressway and attempted to stop; however, he failed to stop in time and struck the decedent.
The Court in Williams found that the decedent should have been able to appreciate the danger of her situation and that a reasonable person would have extricated herself from the danger. Therefore, because the deceased plaintiff was in control of the danger and simply chose to take the risk, the last clear chance doctrine did not apply.
ELEMENT # 2: The defendant knew, or by the exercise of reasonable care, should have discovered the plaintiff’s perilous position and his incapacity to escape from it.
The second element of last clear chance is satisfied upon a showing that “the defendant owed a duty to the plaintiff to maintain a lookout and would have discovered [the plaintiff’s perilous] situation had such a lookout been maintained.” Grogan v. Miller Brewing Co., 72 N.C. App. 620, 623, 325 S.E.2d 9, 11 (1985).
In Nealy v. Green, 139 N.C. App. 500, 506-07, 534 S.E.2d 240, 244-45 (2000), the plaintiff was struck by an automobile as he was walking with his back towards traffic. The Nealy Court noted that the defendant both discovered the plaintiff’s perilous position, and that the defendant owed a duty to discover the plaintiff’s perilous position. In coming to this holding, the Nealy Court emphasized the defendant’s testimony that he saw the plaintiff standing “on the white line” of the road. The Court also emphasized the duty of all drivers owed to “all other persons using the highway” to maintain a proper lookout in the direction of travel.
However, the North Carolina Supreme Court in McCullough v. Amoco Oil Co., 310 N.C. 452, 312 S.E.2d 417 (1984) came to a different conclusion with regard to the second element of last clear chance when the plaintiff darted across the road and was struck by oncoming traffic. The Court in McCullough held that the driver of the automobile that struck the plaintiff “could not have reasonably been expected to anticipate plaintiff’s movement[.]” Therefore, last clear chance did not apply in McCullough.
ELEMENT # 3: The defendant negligently used available time and means to avoid the injury to the plaintiff.
The third element of last clear chance is satisfied upon a showing “that [the] defendant had the time and the means to avoid the injury to the plaintiff by the exercise of reasonable care after [the defendant] discovered or should have discovered [the] plaintiff’s perilous position.” Watson v. White, 309 N.C. 498, 505-06, 308 S.E.2d 268, 273 (1983).
In Grogan v. Miller Brewing Co., the plaintiff’s assertion of the last clear chance doctrine failed, in part, due to plaintiff’s inability to prove that the defendant “had the time and means to avoid the injury to the plaintiff by the exercise of reasonable care after she discovered plaintiff’s perilous position.” The Grogan plaintiff had his foot run over by a forklift operated by an employee of defendant-employer. The evidence in Grogan established that the plaintiff was walking alongside the forklift when he suddenly turned in front of the forklift at which time the forklift struck him. The Court held that, because the plaintiff suddenly walked in front of the forklift, the forklift operator did not have the time or means to avoid the injury.
ELEMENT # 4: The defendant negligently failed to use available time and means to avoid the injury to the plaintiff.
The fourth element of last clear chance requires an analysis of whether, given the available time, the defendant demonstrated reasonable care in his attempts to avoid the injury. In Outlaw v. Johnson, 190 N.C. App. 233, 242, 660 S.E.2d 550, 558 (2007), the defendant was operating a tractor-trailer near a construction site. In the right lane of travel in the road ahead of him was a steamroller operated by the plaintiff that was traveling at five to six miles per hour. The tractor-trailer was in the right lane of travel behind a van operated by a third-party. The van approached the steamroller but was able to swerve from the right lane of travel to avoid hitting the plaintiff. However, the defendant was unable to swerve his tractor trailer in time to avoid a collision with the plaintiff. The North Carolina Court of Appeals held that the defendant should have been able to see the steamroller over the van if he was keeping a proper lookout. Therefore, the Court analyzed element number four of the last clear chance doctrine in accordance with the amount of time the defendant should have had to take action to avoid colliding with the plaintiff. The defendant did not demonstrate that he was unable to slow down or otherwise avoid the accident during the time that he should have had; therefore, the Court held that the fourth element of last clear chance was satisfied.
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The last clear chance doctrine can be a saving grace for contributorily negligent plaintiffs. However, satisfying all of the above-referenced elements can sometimes be an onerous task. In any event, it is clear in North Carolina that a plaintiff’s case is not “finished” with a finding of contributory negligence.