The last clear chance doctrine is a common law doctrine that is used to relieve an injured party of the results of his own contributory negligence and permits him to recover despite such negligence when Defendant has the last chance to avoid causing the injury. Whether or not the doctrine of last clear chance applies in a particular case depends wholly upon the existence or nonexistence of the elements necessary to bring it into play. The doctrine presupposes: (1) That plaintiff had been negligent and, as a result thereof, was in a position of danger from which he could not escape by the exercise of ordinary care; and this included not only where it was physically impossible for him to escape, but also in cases where he was totally unaware of his danger and for that reason was unable to escape; (2) that defendant had knowledge that the plaintiff was in such a situation, and knew, or in the exercise of ordinary care should have known, that plaintiff could not escape from such situation; and (3) Defendant had the last clear chance to avoid the accident by exercising ordinary care, and failed to exercise the same, and the accident resulted thereby, and plaintiff was injured as the proximate result of such failure. If any one of these elements is absent, the doctrine does not apply and the case is governed by the ordinary rules ofnegligence and contributory negligence.
The last clear chance doctrine was developed in contributory negligence jurisdictions mainly to avoid the harsh and unfair results of contributory negligence system that barred a negligent plaintiff from complete recovery.
The Last Clear Chance Doctrine is sometimes also referred to as: subsequent-negligence doctrine; discovered-peril doctrine; humanitarian doctrine; supervening-negligence doctrine.
The Second Restatement of Torts describes the Last Clear Chance Doctrine 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).
BAJI 205 (historical):
There has grown up in our law a certain reasoning process that we sometimes call to our aid in analyzing the facts of an accident case, and which is known as the doctrine of last clear chance. It is permissible to use the doctrine only after we first find, and you may not use it unless and until you first shall have found, that in the events leading up to the accident in question, both the [injured party] and defendants were negligent.
The doctrine of last clear chance may be invoked if, and only if, you find from the evidence that these six facts existed:
First: That [the injured party], by his own negligence, got himself into a position of danger.”
Second: That thereupon, either it was physically impossible for him, through the exercise of ordinary care, to escape from the danger, or he was totally unaware of impending danger in his position.
Third: That the defendant had actual knowledge of the perilous situation of the [injured party].
Fourth: That it appeared to the defendant, or would have appeared to him in the exercise of ordinary care, that [the injured party] either was unaware of the danger impending in the situation or was unable to escape therefrom through the exercise of ordinary care.
Fifth: That after the defendant acquired actual knowledge of the perilous situation of the [injured party], he had a clear opportunity to avoid the accident and could have done so by exercising ordinary care.
Sixth: That the defendant did not avail himself of that opportunity, but by negligent conduct proximately caused the accident.
If all the conditions just mentioned are found by you to have existed with respect to the accident in question, then you must find against the defense of contributory negligence, because under such conditions, the law holds the defendant liable for any injury suffered by the [injured party] and proximately resulting from the accident, despite the negligence of the [injured party].