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Last Clear Chance Doctrine in North Carolina

If you are injured in a car accident in North Carolina, your claim against the other involved party will be based in negligence. One defense that the defendant may raise is that you were also negligent. In most states, your own negligence will not keep you from receiving damages, but it might reduce the damages you receive. North Carolina, however, is one of a handful of states that employs a stricter standard called contributory negligence. Generally, if you are found to be contributorily negligent, you are barred from receiving any damages.

If a defendant argues that you have been contributorily negligent, you can raise the affirmative defense that the defendant had the “last clear chance” to avoid the accident. North Carolina courts have outlined the elements of the last clear chance doctrine as follows:

1) The plaintiff, by [plaintiff's] own negligence put [plaintiff] into a position of helpless peril;

2) Defendant discovered, or should have discovered, the position of the plaintiff;

3) Defendant had the time and ability to avoid the injury;

4) Defendant negligently failed to do so; and

5) Plaintiff was injured as a result of the defendant's failure to avoid the injury.

Addison v. KYE (N.C. App. 2004).

The last clear chance doctrine is a common law doctrine. It was originated in the English case, Davies v. Mann, also known as the “Fettered Ass Case.” In that case, the plaintiff fettered, or chained, the feet of his animal and let it graze on the highway. While the animal was grazing, the defendant’s horses and wagon came along, travelling down the hill at an excessive speed, and killed the animal, which was unable to escape from the path of the horses and wagon. The court awarded damages to the plaintiff finding that, although the animal was on the highway unlawfully, the defendant “might, by proper care, have avoided injuring the animal, and did not.” The decision was an extension of the theory of proximate cause because, under those facts, it was the defendant’s negligence which was the proximate cause of the animal’s injury.

The case Gunter v. Wicker (N.C. S.Ct. 1881) appears to be the first case applying the last clear chance doctrine in North Carolina. In that case, the Court cited Davies v. Mann and linked it back to other proximate cause arguments, stating that “[i]f the plaintiff's negligence contributed directly to the injury, it is well settled that he cannot recover; but it is equally well settled that when he is remotely and unconsciously negligent, he is entitled to redress for all injuries inflicted by another, when by the latter the injuries could have been avoided by reasonable diligence.”

The Court thereafter examined the history of the last clear chance doctrine in Exum v. Boyles (1968). In that case, the defendant hit and killed the plaintiff who was changing his right rear tire on the side of the road. The plaintiff was contributorily negligent because he changed the tire while his car was so close to the edge of the road that his body hung over into the paved portion of the road. The defendant did not see the plaintiff until “virtually the instant of impact.”

The Court reemphasized that “the doctrine of the last clear chance is regarded in this jurisdiction as but an application of the doctrine of proximate cause.” If the defendant had the last clear chance to avoid an accident and failed to do so, then it is the defendant’s negligence, not the contributory negligence of the plaintiff, that is the proximate cause of the sustained injury.

The Court then stated that the last clear chance doctrine “imposes liability upon the defendant who did not actually know of the plaintiff's situation if, but only if, the defendant owed a duty to the plaintiff to maintain a lookout and would have discovered his situation had such a lookout been maintained.” Because motorists on the highway owe a duty to all others on the highway, including those on the shoulders, to “maintain a lookout in the direction in which the motorist is traveling,” and the defendant could have seen the plaintiff had been maintaining such a lookout, the issue of the last clear chance doctrine should have been submitted to the jury.

The North Carolina Court of Appeals has since articulated the separate elements of the last clear chance doctrine, as stated above in the case Addison v. KYE. In that case, the defendant negligently made a left turn in front of the plaintiff. However, the plaintiff was contributorily negligent in that he was not wearing his glasses and was speeding. The court found that the first two elements of the last clear chance doctrine were satisfied, but the third was not because the defendant did not have the “time and ability to avoid the injury.” “The doctrine of last clear chance contemplates a last "clear" chance rather than a last "possible" chance to avoid injury.” To satisfy the third element of the doctrine, "there must be an appreciable interval of time between the plaintiff's negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff's prior negligence."

Because the evidence at trial showed that when "[defendant] started to make the turn," plaintiff "was right there,” the defendant did not have the “time and ability to avoid the injury.” During the court’s analysis it cited other cases in which the courts determined that the third element was not satisfied. Those were:

Kenan v. Bass (N.C. App. 1999): The defendant testified that he "couldn't see [the plaintiff's car] until it was too late.” The trial court held that the defendant did not have the time and ability to avoid the injury.

Culler v. Hamlett (N.C. App. 2002):  The defendant did not see the plaintiff until the moment before the accident and there was no place to pull over, so the defendant did not have the time and ability to avoid the injury.

Watson v. White (N.C. S.Ct. 1983):  The Court held that the period of time of 1.28 seconds might have been sufficient to give the defendant the last possible chance to avoid the injury, but not the last clear chance.

Clodgelter v. Carroll ( N.C. S.Ct. 1964):  The Court held that the last clear chance “must have been such a chance as would have enabled a reasonably prudent man in like position to have acted effectively.”

The application of the last clear chance doctrine tends to be fairly fact specific. If you have been injured in a car accident, you need to look to look at all the facts with a lawyer at Rosensteel Fleishman, PLLC (704) 714-1450.

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