What is the "Last Clear Chance" Rule in Personal Injury Law?

The interplay of the "last clear chance" doctrine and your state's shared fault rules can affect liability for an accident.

By , J.D. University of San Francisco School of Law
Updated 5/01/2023

The "last clear chance" rule is a legal concept that was traditionally applied in personal injury cases where both parties (the injured plaintiff and the defendant) shared some amount of fault for the accident that led to to the case. Let's look at how the "last clear chance" rule works, and how it may still apply in certain types of personal injury cases.

"Last Clear Chance" and Contributory Negligence

The "last clear chance" rule has its origins in "common law." A common law legal rule is one made by judges and fine-tuned in court decisions handed down over the years, as opposed to a statute or other rule created by lawmakers.

"Last clear chance" came about as an exception to the rule of "contributory negligence" (one of the most common defenses in personal injury cases), so it may make sense to start with an explanation of contributory negligence.

What Is Contributory Negligence?

When applied to a personal injury case, the very plaintiff-unfriendly contributory negligence rule says that, if the plaintiff was found to have been negligent even in the slightest degree, and that negligence was a cause of the accident, the plaintiff can't recover any damages from any other at-fault parties. (Learn more about damages in a personal injury case.)

Thankfully (for injury claimants anyway), most states have abolished contributory negligence and replaced it with comparative negligence; more on this later. (Note: Alabama, Maryland, North Carolina, Virginia, and Washington D.C. still follow contributory negligence rules.)

What is the "Last Clear Chance" Doctrine?

The last clear chance rule was created by judges to ease the harsh effects of contributory negligence. Judges in states that followed the contributory negligence rule believed that negligent plaintiffs should still be able to get some compensation in certain situations, rather than come away with nothing.

The exact language of the last clear chance rule differs from state to state, but, in general it says:

Even if the plaintiff was negligent in connection with an accident, they can still recover damages if the defendant could have avoided the accident altogether by the exercise of ordinary care and reasonable prudence.

In order to successfully employ the "last clear chance" rule, the plaintiff must typically prove that:

  • the plaintiff was in immediate or actual danger and was unable to remove themselves from that danger
  • the defendant knew about the danger, and
  • the defendant had a reasonable opportunity to avoid the accident or injury.

In some ways, the last clear chance rule is exactly what it sounds like. A negligent plaintiff must prove that, as between the plaintiff and the defendant, the defendant was the one who had the last opportunity to change course and avoid injuring the plaintiff.

Let's look at an example of how the last clear chance rule might be applied in practice. Let's say the plaintiff was crossing a long railroad bridge, and that the bridge had "No Pedestrians" signage and no walkway, so that the plaintiff had nowhere to go when a train came along. Even through the plaintiff was clearly negligent, they might still be able to recover damages if the train driver:

  • by the exercise of ordinary care, could (or should) have seen the plaintiff, and
  • would have been able to safely stop the train before hitting the plaintiff.

In this situation, the train driver had the last clear chance to avoid the accident.

Comparative Negligence Instead of "Last Clear Chance"?

As mentioned above, most states have abandoned contributory negligence and adopted comparative negligence schemes, effectively moving on from the last clear chance rule, though it's still referenced in some personal injury cases.

Under most comparative negligence rules, the plaintiff can still recover damages after an accident as long as the plaintiff's share of negligence amounted to 50 percent or less (or less than 50 percent) of the cause of the accident, depending on the state.

To illustrate how this works in practice, let's say that in a car accident case, the jury finds that the plaintiff was 30 percent responsible for the crash, and suffered $100,000 in damages. In that situation, the plaintiff's damages would be reduced by 30 percent (equal to the plaintiff's share of fault) and they would receive only $70,000.

Some states follow what is called "pure" comparative negligence, meaning that the plaintiff can still get some damages even if their share of negligence exceeds 50 percent.

Next Steps After an Injury

If you can apply the basic fault rules we've discussed here to your accident, and you're comfortable navigating the injury claim process on your own, it might make sense to negotiate an injury settlement on your injury claim. Learn more about handling your own injury claim and get tips on getting a fair injury settlement.

If you're getting pushback from the other party or their insurance company, or you just want to make sure your claim is in experienced hands, it might make sense to discuss your situation with a legal professional. Learn more about how a lawyer can help with your personal injury claim, and get tips on finding the right personal injury attorney.

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