Written by Brian A. Cafritz, Esq.
It’s not uncommon for a restaurant or retail customer to argue that, although his own actions contributed to his injuries, a particular employee of the defendant had been aware of the Plaintiff’s peril and took no steps to prevent an accident. Of course, this argument concedes that a plaintiff’s own actions were negligent. Nevertheless, for decades, Virginia plaintiffs have unsuccessfully tried to avoid the harsh consequences of contributory negligence by asking courts to invoke the “Last Clear Chance” doctrine. This doctrine was designed to prevent a defendant from escaping liability when it was aware of the plaintiff’s predicament and could have prevented the accident but failed to do so. The doctrine, however, has been more of a law school theory that was rumored and never seen, as the Virginia Supreme Court rarely, if ever, allowed it to apply in actual cases.
That changed last month in the case of Estate of Coutlakis v. CSX Transportation, Va Sup. Ct. Record 60277, when the Virginia Supreme Court relied on the Last Clear Chance doctrine to overrule a trial court’s decision to dismiss Plaintiff’s Complaint on Demurrer. In Coutlakis, the plaintiff was walking adjacent to railroad tracks while listening to music through his earphones. Tragically, he was killed when he was struck from behind by an object sticking out of a train as it passed him along the tracks. Although the decedent had no idea the train was approaching him from behind, it was clear that his choice to walk along those tracks was negligent. The Plaintiff, however, argued that the train conductor had the last clear chance to avoid the accident, because he had seen the plaintiff several hundred yards away but did nothing to alert Mr. Coutlakis or to avoid the accident.
The defendant denied liability and moved to dismiss the Complaint on demurrer, arguing that the decedent’s negligence in walking along the tracks was an ongoing act of negligence that continued up to the moment of the accident, thereby preventing the Last Clear Chance doctrine from applying. Second, the defendant argued that decedent’s acts were willful and grossly negligent, which as a policy, should bar any plaintiff from relying on the doctrine.
The trial judge agreed with the defendant and dismissed the case. In overruling the trial court’s dismissal, the Virginia Supreme Court held that this case was a classic example of an inattentive plaintiff who placed himself in a position of peril without knowledge of the threat approaching him from behind. It further stated that Mr. Coutlakis’s continuing negligence up to the point of accident was not a factor, because:
“The doctrine of last clear chance presupposes a situation where there is negligence on the part of defendant and contributory negligence on the part of plaintiff, which upon ordinary and purely legalistic principles would result in a finding in favor of defendant. However, for humane considerations and to avoid that harsh and inevitable result, the law permits two types of plaintiffs to recover, notwithstanding their negligence, if, and only if, certain circumstances exist.”
In its opinion, the Court explained that the defendant’s arguments ran contrary to the doctrine’s purpose and that in this circumstance, the defendant’s negligence was an intervening cause of the accident, which made the Plaintiff’s negligence remote.
It should be clear that the Virginia Supreme Court did not rule that the Defendant was, in fact, liable. Rather, the Court remanded the case to the Circuit Court to let the jury decide if the Last Clear Chance doctrine could save the Plaintiff’s case. The key facts driving this opinion were the Defendant’s knowledge of Plaintiff’s danger in time to react and the Plaintiff’s inability to know of the danger from behind him.
The defendant’s knowledge is crucial because unlike general negligence, there is no constructive notice standard for Last Clear Chance. In other words, the doctrine does not apply if the defendant should have known what plaintiff was doing or should have known of his danger. Instead, the Last Clear Chance doctrine requires actual notice of the Plaintiff’s peril. This distinction alone limits its applicability. Of course, this limitation will not prevent plaintiff’s lawyers from always stretching the facts in order to use this doctrine as often as possible.
In the wake of this ruling, we can anticipate that Plaintiffs will be more likely to argue that defendants hold the ultimate responsibility of protecting them from their own negligence. As such, it will be critical to train managers to consider this possibility when conducting their post-accident investigations. The best practice would be to make sure files are properly documented to clearly illustrate and document that employees did not know what the plaintiff was doing when the accident occurred.