What is the “Last Clear Chance” Doctrine for Charlotte Personal Injury Cases?

Our News

What is the “Last Clear Chance” Doctrine for Charlotte Personal Injury Cases?

By Brown Moore

November 30, 2017

Home News & Resources What is the “Last Clear Chance” Doctrine for Charlotte Personal Injury Cases?

North Carolina is one of the few states that still applies the doctrine of contributory negligence to personal injury and wrongful death cases. Even if the victim is only one percent at fault and the other party is 99 percent at fault, the victim’s one percent of a fault completely bars the victim from recovering damages from the defendant. We have argued that the contributory negligence doctrine is unfair and outdated.

However, North Carolina also has the “last clear chance” doctrine which allows the victim to recover if he or she can prove that the other party had the last clear chance to avoid the accident. If the “last clear chance” doctrine can be proven, then contributory negligence does not apply. Personal injury law is complex. If you have been injured in an accident, you need a good Charlotte personal injury lawyer.

The case of Scheffer v. Dalton, 777 SE 2d 534 (N. Car. App. 2015) provides a good illustration of how the “last clear chance” doctrine works.

Scheffer v. Dalton — Facts of Case

On November 27, 2010, Jeremy Scheffer (“Scheffer”) was riding his moped and was struck by the defendant’s vehicle and killed. Scheffer had just finished his shift at The Spirited Cyclist, a bicycle shop located in Huntersville where he worked. Scheffer left the bicycle shop just after 6:30 pm. Scheffer’s moped had a factory-installed light for night use, but that light had been broken about a month before his death. In the meantime, he had attached to his handlebars a headlight used for bicycles.

One independent witness who testified at the trial said that she was traveling south on Highway 115 in Mooresville. She stated that it was “very dark” that night. She testified she saw a “very, very faint little light” on the road ahead coming at her in the northbound lanes. She first saw the light when it was about two car lengths away and that, after she passed the light, she could not see it in her rearview mirror when she looked back.

It turns out that what the witness had seen was Scheffer on his moped just a few minutes before he was struck and killed.

The defendant was driving southbound on Highway 115. He was approaching Steam Engine Drive and was intending to turn left. The evidence showed that the defendant slowed, turned on his left turn signal, moved into the left turn lane, and then waited momentarily for an oncoming northbound vehicle to pass. Once that vehicle passed, the defendant proceeded to turn left, but:

  • Did not come to a complete stop before making the left turn;
  • Began the turn early, crossing the double-yellow lines approximately twenty-eight feet before the intersection; and
  • Did not look to see if any other vehicles were approaching in the northbound lanes before executing the left turn.

Scheffer’s moped collided with Defendant’s car in the northbound lane. The defendant testified he did not see Scheffer, a moped, or anything else, prior to the collision. After the accident, almost thirty-five feet of skid marks had been left by Scheffer’s moped leading to the point of impact.

Legal Issues in the Personal Injury Case

Scheffer’s next of kin, the plaintiff, filed a wrongful death lawsuit against the defendant alleging that Scheffer’s death was caused by the defendant’s negligence. In particular, the defendant

  • Failed to maintain a reasonable look-out;
  • Failed to keep his vehicle under proper control;
  • Failed to yield the right-of-way when turning left in an intersection; and
  • Failed to keep his vehicle in the proper lane of travel.

The defendant asserted that Scheffer was contributorily negligent by, among other things, failing to have a properly functioning headlight. The plaintiff denied contributory negligence and asserted, alternatively, that the defendant had the last chance to avoid the accident making the doctrine of contributory negligence inapplicable.

The jury returned a finding that the defendant WAS negligent and that his negligence proximately caused Scheffer’s death. But the jury ALSO found that Scheffer was contributorily negligent. As such, the trial judge entered a judgment in favor of the defendant giving nothing to Scheffer’s next of kin. The jury, however, was not given the opportunity to decide facts related to the “last clear chance” doctrine.

The “Last Clear Chance” Doctrine for Personal Injury Cases

Have questions about your personal injury case? Contact R. Kent Brown Brown Moore, & Associates today!

On appeal, the Court of Appeals held that there was sufficient evidence on the “last clear chance” doctrine for the jury to have been allowed to decide those facts. As such, the verdict was overturned and the case was sent back for a new trial.

The “last clear chance” doctrine requires the plaintiff to prove four facts or elements:

(1) That the plaintiff had negligently placed himself in a position of peril from which he could not escape;

(2) That the defendant knew, or by the exercise of reasonable care could have discovered, the plaintiff’s perilous position;

(3) That the defendant had the time and means to avoid the injury to the endangered plaintiff; AND

(4) That the defendant negligently failed to use the available time and means to avoid the injury.

The Court of Appeals held there to be evidence on all of these elements.

Scheffer had clearly placed himself in a position of peril and had done so negligently. The headlamp was inadequate, he was wearing non-reflective black clothing and was riding a moped painted black. But, at the same time, the 35 feet of skid marks provided evidence that Scheffer had tried to extricate himself from peril.

The Court of Appeals also found some evidence that the defendant could have discovered Scheffer’s peril “by the exercise of reasonable care.” There was evidence presented suggesting that, after the oncoming car had passed him on Highway 115, the defendant did not look to the left or down the northbound lanes of Highway 115 to see if any other vehicles were approaching. Based on the length of the moped’s skid marks left on the road, Scheffer was at least 35 feet in front of the defendant before the defendant crossed the double yellow lines. Based on measurements, Scheffer would have been within the well-lit intersection when the defendant began turning. Had the defendant looked — a reasonable action to take — he could have seen Scheffer and realized Sheffer’s peril.

On the third element, the same facts concerning the skid marks provide some evidence that the defendant would have had the “available time and means” to avoid the collision had he looked. Had he seen Scheffer in time, the defendant might not have made the left turn, or might have delayed his turn, or might have been able to execute some other maneuver to avoid the collision. The Court of Appeals said that was a fact question for the jury.

Finally, the defendant’s failure to look could be deemed negligence and could be deemed the proximate cause of Scheffer’s death.

Contact An Attorney to See if the “Last Clear Chance” Doctrine Applies to Your Personal Injury Case

As said above, personal injury cases are complex involving many nuanced legal doctrines — especially when it comes to the “last clear chance” doctrine. An experienced and battle-tested lawyer can help. If you or a loved one has been injured by the negligence of some third-party, call an experienced personal injury attorney like those at Brown Moore & Associates. Contact our office today to schedule your free consultation.