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What is the Last Clear Chance?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 27 October 2016
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Last clear chance is a doctrine in civil law which simply states that if a plaintiff engaged in contributory negligence but the defendant could have taken action to avoid a danger, the plaintiff can still recover damages from the defendant. This doctrine can be implied in a variety of circumstances and is designed to hold people responsible for tort violations even when those violations were accompanied by contributory negligence on the part of the plaintiff.

In a simple example of how the last clear chance doctrine might be used, if a driver involved in a rear end collision is suing the driver who did the rear ending, the defendant might argue that the first driver slammed on the brakes suddenly as a result of inattentiveness or negligence. The plaintiff could admit this, but could argue that the defendant still had time to act to avoid a collision, and thus that the defendant should be held liable for damages.

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The plaintiff may be considered “helpless” or “inattentive” in reviews to decide whether or not the last clear chance doctrine can be applied to a case. In the case of a “helpless” plaintiff, he or she has ended up in a situation which cannot be avoided as a result of negligence, while an inattentive plaintiff could escape injury, but is not paying attention to the surroundings. In both cases, if someone injures the plaintiff, there is a chance of being held responsible under the argument that the defendant should have exercised due care to protect the plaintiff from injury.

An example of a helpless plaintiff might be someone who was speeding on an icy road and spun out. The plaintiff is powerless to get out of danger at this point, but someone driving down the road could exercise due caution and stop while the plaintiff gained control of the vehicle. An inattentive plaintiff might be someone who drifts over the center line on the road as a result of not paying attention, which means that a reasonable person would move to avoid the drifting car and would probably take action such as honking to warn the other driver.

Likewise, defendants can be classified as inattentive or observant. Observant defendants are people who saw the danger and took no steps to avoid it, while inattentive defendants did not see the danger because they were being negligent, and thus failed to prevent a dangerous situation from happening. If the plaintiff is helpless and the defendant is observant, the last clear chance doctrine is usually applied. In cases of helpless plaintiffs versus inattentive defendants, or inattentive plaintiffs versus observant defendants, the doctrine may be applied. When both parties were inattentive, the last clear chance doctrine is not applied.

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Inaventu
Post 2

@mrwormy- I'm not a legal expert myself, but I would think you'd have a good case against her if you could prove she was actually using her cellphone at the exact moment of impact. It could be that she was calling 911 to report the accident, but you were in shock and don't remember the exact timeline of events. I've always heard that the fault in a rear-end accident is assigned to the second driver, but there's always exceptions. If you stopped for no reason at all, or your brake lights were not working, then you'd probably have some liability.

mrwormy
Post 1

I wonder if this "last clear chance" doctrine would come into play if the defendant had been talking or texting on his or her cellphone at the time of the accident? I was rear-ended by an inattentive driver last year, and I noticed she was on her cellphone at the time. I didn't pursue an actual civil lawsuit because her insurance company handled everything so quickly, but I still wonder if her cellphone use contributed to the accident. Would she have had a "last clear chance" to put on her brakes if she hadn't been distracted by the phone call?

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