Last Clear Chance Doctrine

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The Last Clear Chance Doctrine

The last clear chance doctrine is a common law doctrine that is used to relieve an injured party of the results of his own contributory negligence and permits him to recover despite such neglignece when Defendant has the last chance to avoid causing the injury. Whether or not the doctrine of last clear chance applies in a particular case depends wholly upon the existence or nonexistence of the elements necessary to bring it into play. The doctrine presupposes: (1) That plaintiff had been negligent and, as a result thereof, was in a position of danger from which he could not escape by the exercise of ordinary care; and this included not only where it was physically impossible for him to escape, but also in cases where he was totally unaware of his danger and for that reason was unable to escape; (2) that defendant had knowledge that the plaintiff was in such a situation, and knew, or in the exercise of ordinary care should have known, that plaintiff could not escape from such situation; and (3) Defendant had the last clear chance to avoid the accident by exercising ordinary care, and failed to exercise the same, and the accident resulted thereby, and plaintiff was injured as the proximate result of such failure. If any one of these elements is absent, the doctrine does not apply and the case is governed by the ordinary rules of negligence and contributory negligence.

The last clear chance doctrine was developed in contributory negligence jurisdictions mainly to avoid the harsh and unfair results of contributory negligence system that barred a negligent plaintiff from complete recovery.

The Second Restatement of Torts describes the Last Clear Chance Doctrine as follows:

§ 479. LAST CLEAR CHANCE: HELPLESS PLAINTIFF

A plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,

(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and

(b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he

(i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or

(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise.

§ 480. LAST CLEAR CHANCE: INATTENTIVE PLAINTIFF

A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant's negligence in time to avoid the harm to him, can recover if, but only if, the defendant

(a) knows of the plaintiff's situation, and

(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and

(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

The introduction of the doctrine is widely attributed to the English case of Davies v. Mann, 152 Eng. Rep. 588 (1842).