Last Clear Chance, or "How to Resurrect a Doomed Personal Injury Claim"

Contributory negligence is often the death knell for personal injury claims.  But North Carolina law gives us a nifty little tool that can help to overcome a contrib defense.

Contributory negligence is often the death knell for personal injury claims.  But North Carolina law gives us a nifty little tool that can help to overcome a contrib defense.

This article is based largely on the idea of contributory negligence, which was covered in an article awhile back.  If you haven't read that article yet, read it now!

Contributory negligence stinks!

Experts that we all are on contributory negligence, we know that it's (i) archaic, (ii) often unfair, and (iii) one of the most oft-used tools for adjusters and insurance defense attorneys alike.  What it means, in summation, is that if you share even one percent of the fault for your accident, North Carolina law prohibits you from recovering any of your damages whatsoever.  This makes very little sense, which is why North Carolina is one of only four states that still uses contributory negligence.  Where this doctrine is successfully pled, an otherwise valuable claim is rendered essentially worthless.  

Isn't there something I can use to fight contributory negligence?

Fortunately, North Carolina law gives plaintiffs one small weapon in the fight against contrib.  We call it the "Last Clear Chance" doctrine.  What it essentially means is that, even if you were contributorily negligent, you can still recover if the defendant had the last clear chance to avoid the accident, and failed to do so.

What do I have to prove in order to use Last Clear Chance?

Last Clear Chance is a fairly straightforward idea, but the plaintiff bears the burden of proving that it applies.  In order to plead it successfully, you have to prove each of the following four elements:

  1. That the plaintiff negligently placed him or herself in a position of danger from which the plaintiff could not escape by the exercise of reasonable care;
  2. That the defendant knew, or by the exercise of reasonable care could have discovered, the plaintiff's perilous position and incapacity to escape from it before the endangered plaintiff suffered injury at the defendant's hands;
  3. That the defendant had the time and means to avoid injury to the endangered plaintiff by the exercise of reasonable care after he discovered, or should have discovered, the plaintiff's perilous position and incapacity to escape therefrom; and
  4. That the defendant negligently failed to use the available time and means to avoid injury to the endangered plaintiff, and for that reason injured him or her.

Yeah, that's not that straightforward...

Okay, so let's run one of my world-famous hypotheticals.  Let's say that you're approaching an intersection with four-way stop signs.  You approach yours, and seeing nobody at the intersection, you roll through it without coming to a complete stop and enter the intersection.  You fail to see Leroy Brown speeding down the road in his brand new Mazda.  Leroy's going 20 miles per hour over the speed limit, and because he's playing with the car's fancy touchscreen, he doesn't see the stop sign or your car in the intersection.  Leroy blows through the stop sign and hits you going 65 miles per hour, causing a totaled car and extensive personal injury.

You open your personal injury claim with Leroy's liability carrier, and they deny the claim citing contributory negligence.  Can you successfully prove Last Clear Chance to revive your claim?  Let's look at the elements!

  1. Did you, as the plaintiff, place yourself in a position of danger from which you could not escape by the exercise of reasonable care?  Yes, you did.  You rolled through the stop sign, thus contributing to the accident. Had you stopped, you probably would have seen Leroy coming and the accident wouldn't have occurred.
  2. Did Leroy know, or could he have known by the exercise of reasonable care, your position and your incapacity to escape from danger before he hit you?  Again, the answer is yes.  If Leroy hadn't been playing with the touchscreen in his new car, he would have seen the stop sign, and he would have seen you in the intersection.  Leroy would have been able to avoid the accident by stopping or slowing down.
  3. Did Leroy have the time and means to avoid injury to you by reasonable care after he discovered, or should have discovered, your perilous position and incapacity to escape therefrom?  Yes again!  Under this example, Leroy could have seen you in plenty of time had he not been distracted by the touchscreen.
  4. Did Leroy fail to use the time and means available to avoid injuring you, and was his failure the reason why he struck and injured you?  Yes.  This question speaks to causation, asking whether Leroy's failure to avoid the accident was the proximate cause of your injuries.  In this scenario, it's clear that you wouldn't have suffered your injuries if Leroy had avoided hitting you.

Cool!  Anything else?

It's important to understand that, like the contributory negligence analysis itself, Last Clear Chance isn't an automatic get-out-of-jail-free card.  If you prove these elements at trial, then the jury gets an instruction that they must consider Last Clear Chance in making their final decision.  They can choose to find that the Last Clear Chance doctrine applies, or they can choose that it doesn't apply.  But this argument isn't just useful in the jury; if you can show the adjuster that it might, the adjuster is probably going to be more inclined to make a reasonable settlement offer.  Use Last Clear Chance wisely, and it can help to resurrect an otherwise unrecoverable claim.