Last Clear Chance

In the law of TORTS, the doctrine that excuses or negates the effect of the plaintiff's contributory
Negligence and permits him or her torecover, in particular instances, damages regardless of his
or her own lack of ordinary care.
The rule of last clear chance operates when the plaintiff negligently enters into an area of danger
from which the person cannot extricatehimself or herself. The defendant has the final opportunity
to prevent the harm that the plaintiff otherwise will suffer. The doctrine wasformulated to relieve
the severity of the application of the contributory negligence rule against the plaintiff, which com
pletely bars anyrecovery if the person was at all negligent.
There are as many variations and adaptations of this doctrine as there are jurisdictions that apply
it. Four different categories have emerged,which are classified as helpless plaintiffs, inattentive p
laintiffs, observant defendants, and inattentive defendants.

Helpless Plaintiffs
Where the plaintiff's previous negligence has placed him or her in a position from which the pers
on is powerless to extricate himself or herselfby the exercise of any ordinary care, and the defend
ant detects the danger while time remains to avoid it but fails to act, the courts have heldthat the
plaintiff can recover.
There must be proof that the defendant discovered the situation, had the time to take action that
would have saved the plaintiff, but failed todo what a reasonable person would have done. In the
absence of any one of these elements, the courts deny recovery.
If the defendant who has a duty to discover the plaintiff's peril does not do so in time to avoid inj
ury to the plaintiff, some courts havepermitted recovery under the rationale that the defendant's s
ubsequent negligence is the proximate cause, or direct cause, of the injury,rather than the contrib
utory negligence of the plaintiff. The defendant must have been able to have discovered the peril
through appropriatevigilance so as to avoid its harmful consequences to the plaintiff.

Inattentive Plaintiffs
In another group of cases, the plaintiff is not helpless but is in a position to escape injury. The per
son's negligence consists of failure to payattention to his or her surroundings and detect his or he
r own peril. If the defendant discovers the plaintiff's danger and inattentiveness, and isthen neglig
ent, a majority of courts allows the plaintiff to recover. Some courts hold that the defendant must
actually recognize the plaintiff'sdanger and inattention. Most courts apply a more objective stand
ard; they require only that the defendant discover the situation and that theplaintiff's peril and ina
ttentiveness be evident to a reasonable person. The discovery can be proved by Circumstantial
Evidence. There is anadditional essential qualification that the defendant can frequently, reasona
bly assume until the last moment that the plaintiff will protecthimself or herself, and the defenda
nt has no reason to act until he or she has some notice to the contrary.
If the defendant does not discover the plaintiff's situationbut could do so with appropriate vigil
anceneither party can be viewed aspossessing the last clear chance. The plaintiff is still in a po
sition to escape, and his or her inattentiveness persists until the juncture of theaccident, without t
he interval of superior opportunity of the defendant. The plaintiff cannot reasonably demand of t

he defendant greater carefor his or her own protection than that which he or she as plaintiff woul
d exercise for himself or herself. Nearly all of the courts have ruledthat, in this situation, there ca
n be no recovery.

Observant Defendant
The observant defendant is one who actually sees the plaintiff in time to act so as to avoid the har
m and assumes that a duty exists to actunder the circumstances. The person perceives the plaintif
f's helpless or inattentive condition, but thereafter is negligent in failing to act soas to prevent the
plaintiff's harm. In most instances, the defendant's conduct is itself the cause of the plaintiff's dan
ger, but this is not arequirement so long as a duty to act exists.
The plaintiff must prove that the defendant actually saw him or her and that a reasonable person
would have known that he or she wasinattentive or helpless. This is determined by an objective t
est entailing circumstantial evidence of the defendant's state of mind. Thedefendant cannot assert
unawareness of the plaintiff's powerlessness or inattentiveness when that fact would have been e
vident to anyobserver.

Inattentive Defendant
The inattentive defendant is one who fails to fulfill the duty to maintain a surveillance in order to
see the plaintiff in time to avoid the harm,perceive the person's helpless or inattentive condition,
and thereby exercise reasonable care to act in time to avoid the harm. Due to thedefendant's negli
gence, however, he or she fails to see the plaintiff in time, and injury occurs.

Application of Doctrine
There are four possible cases in which the rule of last clear chance can be applied.
The typical last clear chance situation involves the helpless plaintiff against the observant defend
ant, and all courts that accept the doctrinewill apply it. The few courts that do not recognize the r
ule attain the same result under the doctrine of willful and wanton misconduct.
In the helpless plaintiff-inattentive defendant and the inattentive plaintiff-observant defendant cas
es, most jurisdictions that acknowledge therule apply it.
Where the case entails the inattentive plaintiff against the inattentive defendant, the justifications
for the rule are eliminated, and nearly alljurisdictions refuse to apply it.
The defendant's negligence must occur subsequent to that point in time when the person discover
ed or should have discovered the plaintiff'speril.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All
rights reserved.

last clear chance

n. a rule of law in determining responsibility for damages caused by negligence, which provides t
hat if the plaintiff (the party suing fordamages) is negligent, that will not matter if the defendant (
the party being sued for damages caused by his/her negligence) could have stillavoided the accid
ent by reasonable care in the final moments (no matter how slight) before the accident. The theor

y is that although theplaintiff may have been negligent, his/her negligence no longer was the caus
e of the accident because the defendant could have preventedthe accident. Most commonly appli
ed to auto accidents, a typical case of last clear chance would be when one driver drifts over the c
enterline, and this action was noted by an on-coming driver who proceeds without taking simple
evasive action, crashes into the first driver, and isthus liable for the injuries to the first driver who
was over the line. In the few states which apply the strict "contributory negligence" rule whichke
eps a negligent plaintiff from recovering damages from a negligent defendant, "last clear chance"
can save the careless plaintiff's lawsuit.(See: negligence, contributory negligence, comparative
negligence)
Copyright 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.