Can Virginia’s Last Clear Chance Doctrine Save Your Negligence Lawsuit?
You Can Overcome the Contributory Negligence Defense by Proving the Defendant Had the Last Clear Chance to Avoid the Crash
Virginia follows the common law rule of contributory negligence. This doctrine says that a plaintiff’s negligence is a complete defense barring the plaintiff from recovering money in a lawsuit based on the defendant’s negligence.
But an exception to contributory negligence exists: the last clear chance doctrine.
If the court agrees with the plaintiff that the last clear chance doctrine applies, the plaintiff’s contributory negligence will not bar a civil action for personal injuries.
Keep reading to learn if the last clear chance doctrine applies to your lawsuit.
Then call our personal injury law firm at (804) 251-1620 or fill out this form to see if we will accept representation in your car crash, truck accident, wrongful death, or product defect lawsuit.
What is the Last Clear Chance Doctrine?
In Virginia, the last clear chance rule means that if the defendant in a tort claim had a last clear chance to avoid causing injury to the plaintiff, the defendant might be liable for the plaintiff’s damages despite the plaintiff’s negligence contributing to the dangerous situation.
The Virginia Supreme Court’s rationale for the last clear chance doctrine is straightforward: A person cannot hurt or kill another merely because they are negligent.
Origins of the Last Clear Chance Doctrine
Legal scholars point to the 1842 case of Davies v. Mann as the origin of the last clear chance doctrine in English and American law.
In that case, the plaintiff left a donkey on the road, and the defendant drove a wagon into the animal, killing it.
The court held that the plaintiff, although negligent in leaving the donkey unattended, could recover damages against the defendant because the defendant could have avoided the crash if he had not been driving too quickly.
The last clear chance doctrine had taken hold in Virginia by the end of the 1920s.
In Burr v. Virginia Railway and Power Company, 151 Va. 934 (Dec. 5, 1928), the Virginia Supreme Court held:
It is well settled, under the doctrine of last clear chance, that when the defendant could have avoided the injury by the exercise of ordinary care and failed to do so, he is responsible, although the plaintiff may have been negligent in exposing himself to peril, and although his negligence may have continued until the accident happened.
When Can the Last Clear Chance Doctrine Apply?
You may raise the last clear chance doctrine to overcome the affirmative defense of contributory negligence if both you and the defendant were negligent. Otherwise, this rule does not apply to the litigation.
But be careful if you rely on the court instructing the jury on the last clear chance doctrine to overcome a contributory negligence defense. You bear the burden of proof by a preponderance of the evidence to show the defendant had a last clear chance. Courts have said the last clear chance rule involves “nice distinctions, often of a technical nature, and courts should be wary in extending its application.”
How Do You Prove the Defendant Had a Last Clear Chance to Avoid Causing Injury to You?
What you must prove to profit from the last clear chance doctrine depends on whether the court finds you helpless or inattentive.
Let’s look at what the Virginia Model Jury Instructions say for each type of plaintiff.
Last Clear Chance When You Are Helpless
You are a helpless plaintiff if you negligently placed yourself in peril from which you cannot physically remove yourself.
Jury Charge No. 7.040 says your contributory negligence will not bar a financial recovery if you were unaware of the danger, the defendant saw and knew, or should have known, you were in danger, and the defendant could have avoided the incident by using ordinary care.
Last Clear Chance When You Are Inattentive
You are an inattentive plaintiff if you negligently place yourself in peril from which you can remove yourself but do not understand the risk.
If the court finds you inattentive, you must prove the defendant saw you and realized (or should have realized) your danger, and the defendant could have avoided the collision or harm by using ordinary care.
Thus, the key difference between what an inattentive and helpless plaintiff must prove to apply the last clear chance doctrine is whether the defendant actually saw you.
Skilled Lawyers Who Can Help You Use the Last Clear Chance Doctrine to Resolve Your Claim Successfully
Proving fault is necessary to win a negligence lawsuit.
Disputes over fault play a role in every state but can eliminate your claim more easily in jurisdictions like Virginia that follow the contributory negligence rule. The insurer need only prove you had a tiny role in causing the accident.
Our attorneys fight back and look for ways to prove liability, such as the last clear chance doctrine.
Call us to start.
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