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

It's important to understand the interplay of the "last clear chance" doctrine and your state's shared fault rules when sorting out liability after an accident.

By , J.D.

The "last clear chance" rule (also known as the "last clear chance" doctrine) is a legal concept that was traditionally applied in certain personal injury cases where both the plaintiff and defendant shared some amount of fault for the accident giving rise to the case. In this article, we'll explain how the "last clear chance" rule works, and how it may still apply in certain types of personal injury cases.

Contributory Negligence in Personal Injury Cases

The "last clear chance" rule has its origins in "common law." A common law legal rule is one made by judges, in court decisions handed down over the years, as opposed to a rule that is codified in a law or statute.

"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.

When applied to a personal injury case, the very plaintiff-unfriendly contributory negligence rule means 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 cannot not recover any damages at all from the other at-fault parties. (Learn more about damages in a personal injury case.) 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.)

"Last Clear Chance" Defined

The last clear chance rule was created by judges to ease the harsh effects of contributory negligence. Judges in states with contributory negligence 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 that, even if the plaintiff was negligent in connection with an accident, he or she can still recover damages if the defendant could have avoided the accident altogether by the exercise of ordinary care and reasonable prudence. Learn more about negligence, the duty of "reasonable care", and fault for an accident.

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 extricate him or herself 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, he or she could still 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 comparative negligence, the plaintiff can still recover damages after an accident as long as the plaintiff's share of negligence amounted to 50% or less of the cause of the accident. So, to see 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 he or she 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 his or her negligence was more than 50% of the cause of the accident.

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