Doctrine of Last Clear Chance in Virginia and North Carolina

by: Robert Slaughter

If you or a relative or friend has had a personal injury suit from a Virginia or North Carolina car wreck, you may have heard about the law of contributory negligence.

Contributory negligence is a harsh law providing that if the injured person, called the plaintiff, is at all at fault, the plaintiff loses the case and cannot recover a penny. So even if the other driver (the defendant in the suit is 99% at fault, and the plaintiff is only 1% at fault, the plaintiff goes home with nothing. Only a few states, including Virginia and North Carolina, have this law.

Most states have a version of the law of comparative negligence, in which the negligence of the plaintiff is compared with the negligence of the defendant, and the negligence of the plaintiff reduces, but does not eliminate, the plaintiff’s recovery. In our example, in a comparative negligence state, a plaintiff who is 1% at fault would get a lower recovery – maybe reduced by just 1% depending on the version of comparative negligence in that state – but would certainly not be shut out entirely.

At Slaughter & Lupton Law, we litigate personal injury motor vehicle accident cases extensive in Virginia and North Carolina. In those states, we’re stuck with the law of contributory negligence. But sometimes we can get around that law under the doctrine of last clear chance. I’ll explain.

Explaining Last Clear Chance

Let’s use this example. Paul, driving down a straight North Carolina two-lane highway in the middle of the day, hears a rattling sound under his car towards the right rear and pulls over. There was no other traffic on the road. Paul thinks his car is entirely on the shoulder, but the left rear is sticking out on the road a little. Paul gets down on the ground on his back and sticks his head under the car to see if he can see anything.

Then Frank, driving a pickup, comes along in Paul’s lane. Paul sees him and then realizes his car is a little in the road. But he has no time to get up. Frank is not paying enough attention, and his truck crashes into the left rear of Paul’s car. Paul is seriously injured. No other vehicles were around. Paul may be at least partially at fault for this wreck for leaving part of his car on the highway. Does that mean he cannot recover anything because of his contributory negligence?

North Carolina’s Doctrine of Last Clear Chance

Under the North Carolina doctrine of last clear chance, Paul could still win his case. To do that he needs to prove these four things:

1. Paul negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care;
2. Frank knew or by the exercise of reasonable care should have discovered, Paul’s position of peril and inability to escape from it;
3. Frank had the time and means to avoid injuring Paul and failed to exercise reasonable care to do so; and
4. Frank’s failure proximately caused Paul’s injury.

Let’s analyze this. First, Paul negligently placed himself in a position of peril by leaving his car partially on the road and getting under it. When Paul realized the danger, he didn’t have time to get up and out of the way. Second, it was broad daylight on a straight road, so Frank should have seen Paul’s car and Paul lying there. Third, Frank could have simply driven to his left a little and avoided the wreck. Fourth, Frank’s failure to do that was a proximate cause of Paul’s injuries. (There can be more than one proximate cause, which is a cause that in a natural and continuance sequence produces foreseeable injury.) So we would argue that the doctrine of last clear chance applies, and Paul wins his case. Paul’s negligence was also a proximate cause of his injuries, but that contributory negligence is excused under the last clear chance doctrine, and his recovery is not reduced at all by his contributory negligence.

Virginia’s Last Clear Chance Law

Now let’s analyze this under Virginia last clear chance law, which is not as strong for plaintiffs as North Carolina’s last clear chance law. Virginia law distinguishes between a helpless plaintiff and inattentive plaintiff. We’ll look at the requirements for both.

If this wreck was in Virginia, using the helpless plaintiff standard, Paul would need to prove these three things:

1. Paul negligently placed himself in a situation of peril from which he was physically unable to remove himself;
2. Frank saw, or should have seen, Paul and realized, or should have realized, Paul’s peril; and
3. Frank could have avoided the wreck by using ordinary care.

Analyzing this, we can clearly say that Paul can prove the second and third requirements—Frank should have seen Paul and realized Paul’s peril, and Frank could have avoided the wreck simply by turning a little to his left.

The key question is whether Frank was a helpless plaintiff in that he put himself in a position of peril from which he was physically unable to remove himself. Unfortunately, under Virgina law, for a plaintiff to be considered helpless, the plaintiff must have been physically incapacitated by a non-negligent, non-intentional natural cause. That just doesn’t fit the situation of Paul, who negligently crawled under the car that was partially sticking out in the road.

Inattentive Plaintiffs in Virginia

Now let’s look at the Virginia law for inattentive plaintiffs. Paul would have to prove these three things:

1. Paul negligently placed himself in a situation of peril;
2. Paul was physically able to remove himself from the situation, but he was unaware of his peril;
3. Frank actually saw Paul and realized, or should have realized, Paul’s peril; and
4. Frank could have avoided the wreck by using ordinary care.

What about that? Paul can clearly prove requirements one, two, and four. (1) Paul negligently crawled under a car that was partially in the road; (2) Paul could have crawled out, but he was unaware of his danger; and (4) Frank could have avoided the wreck simply by driving a little to his left. But Paul will have difficulty proving requirement three. Paul must prove that Frank actually saw Paul under the car sticking out in the road. Proving that Frank didn’t see Paul because Frank wasn’t paying enough attention won’t work.

What would work? Paul would need a witness who heard Frank admit that he saw Paul’s car and Paul but didn’t think his truck was going to hit Paul’s car or something else showing Frank actually saw Paul. You can see that this is a much tougher case in Virginia than in North Carolina.

Fighting For Your All Of Your Recovery

But whether the case is in Virginia or North Carolina, Slaughter & Lupton Law will always consider the last clear chance doctrine when the insurance company asserts that our client may be deemed partially at fault. We don’t give in to insurance companies asserting that our client was contributorily negligent. We investigate and understand the facts and the law to fight for a maximum recovery for our clients!

If you have a serious injury case, call us for a free initial consultation today!

Robert Slaughter is a personal injury attorney and partner at Slaughter & Lupton Law, PLLC. Slaughter has over four decades of courtroom experience as a trial lawyer. He has built a successful private practice in North Carolina, handled 100+ trials, and has made countless other court appearances across Virginia and North Carolina. Learn more about Robert Slaughter on his Attorney Page.