Last clear chance
Encyclopedia
The last clear chance is a doctrine in the law
of torts that is employed in contributory negligence
jurisdictions. Under this doctrine, a negligent plaintiff
can nonetheless recover if he is able to show that the defendant
had the last opportunity to avoid the accident. Though the stated rationale has differed depending on the court
adopting the doctrine, the underlying idea is to mitigate the harshness of the contributory negligence rule. The defendant can also use this doctrine as a defense. If the plaintiff has the last clear chance to avoid the accident, the defendant will not be liable.
The Restatement (Second) of Torts explains the doctrine in detail 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)
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of torts that is employed in contributory negligence
Contributory negligence
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered...
jurisdictions. Under this doctrine, a negligent plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
can nonetheless recover if he is able to show that the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
had the last opportunity to avoid the accident. Though the stated rationale has differed depending on the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
adopting the doctrine, the underlying idea is to mitigate the harshness of the contributory negligence rule. The defendant can also use this doctrine as a defense. If the plaintiff has the last clear chance to avoid the accident, the defendant will not be liable.
The Restatement (Second) of Torts explains the doctrine in detail 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
Davies v. Mann
Davies v. Mann, 152 Eng. Rep. 588 , was an English case that contained the first formulation of the "last clear chance" doctrine in negligence law.-Decision:...
, 152 Eng. Rep. 588 (1842)