Written by Danny Royce, Esq.
Edited by Bill Pfund, Esq.
Contributory negligence is a powerful affirmative defense in the Commonwealth of Virginia. However, there is an exception to contributory negligence embodied in the Last Clear Chance doctrine. There are two versions of the doctrine. The Court has recognized two types of plaintiffs eligible for the doctrine: the helpless plaintiff and the inattentive plaintiff. The helpless plaintiff is embodied in the Model Jury Instruction as follows:
“Contributory negligence by the plaintiff will not bar his recovery if you find by the greater weight of the evidence that:
(1) the plaintiff negligently placed himself in a situation of peril from which he was physically unable to remove himself; and
(2) the defendant saw, or should have seen the plaintiff and realized, or should have realized, his peril; and
(3) thereafter, the defendant could have avoided the accident by using ordinary care.”
The second version of the doctrine applies when the plaintiff has placed him/herself in peril and is unware of his/her peril (the inattentive plaintiff). This is embodied in the alternate Model Jury Instruction as follows (see Id. at 238-39, 89 S.E.2d at 53):
“Contributory negligence by the plaintiff will not bar his recovery if you find by the greater weight of the evidence that:
(1) the plaintiff negligently placed himself in a situation of peril; and
(2) he was physically able to remove himself from the situation but was unaware of his peril; and
(3) the defendant actually saw the plaintiff and realized, or should have realized, his peril; and
(4) thereafter, the defendant could have avoided the accident by using ordinary care.”
This doctrine isn’t often addressed by the Supreme Court of Virginia so when it is, it is noteworthy (in fact, the doctrine hasn’t been addressed since 1998). The Court recently ruled on a case involving the doctrine of Last Clear Chance in the case of Coutlakis v. CSX Transportation, Inc., et al., Supreme Court of Virginia, Record No. 160277, March 9, 2017. The Coutlakis case addresses the second version of Last Clear Chance involving a decedent “unaware of his peril,” the proverbial inattentive plaintiff.
In Coutlakis, the widow of a man struck by a train filed suit against the railroad and certain crew members. In overruling the trial court, the Supreme Court ruled that Coutlakis’ Estate can pursue a lawsuit as a result of his death. With its ruling, the Supreme Court resurrected a legal concept often relegated to law school hypotheticals, but with potential significance to liability carriers and their respective defense counsel.
According to the Supreme Court’s synopsis, Coutlakis was struck by a CSX train as he walked adjacent to railroad tracks while listening to earbuds. Coutlakis was struck and killed by the train as he walked under the Powhite Parkway Bridge in Richmond, Virginia. Coutlakis was apparently unaware that a train was approaching. It was alleged that the train crew saw the decedent as he walked several hundred yards in front of the train while showing no outward signs that he was in danger. The underlying suit alleged that neither the engineer nor conductor took any steps to alert the decedent and/or avoid the collision. The lawsuit further claimed that the decedent was struck by a portion of the train that extended from the body of the train causing fatal injuries. Because the case was dismissed at the demurrer stage in the trial court, there was no evidence taken at trial. However, it is anticipated that should the case proceed to trial, there would be contradicting evidence offered that the crew sounded a horn but the decedent was unable to remove himself from danger prior to impact. Notably, the Court’s opinion makes no mention of such a warning by the train crew inasmuch as the underlying trial did not proceed far enough into litigation such that any such evidence could be developed and considered by the Court.
Coutlakis’ wife filed suit as the Personal Representative of Coutlakis’ Estate against CSX and its crew. She alleged that the crew was negligent in its failure to prevent the accident. The railroad predictably contended that Coutlakis was contributorily negligent and it was his own negligence that led to his death. Relying on old precedent, the defendant(s) alleged that because decedent’s negligence continued to the point of impact, Last Clear Chance would not override the decedent’s contributory negligence. Older cases cited by the defendant held that the doctrine did not apply when both parties are guilty of negligence continuing up to the point of the accident (see Roanoke Ry. & Elec. Co. v. Carroll, 112 Va. 598, 604, 72 S.E. 125, 128 (1911); see also Harris Motor Lines, Inc. v. Green, 184 Va. 984, 991, 37 S.E.2d 4, 6 (1946)). The Executor alleged that the railroad employees had the last clear chance to avoid the incident. The trial court rejected application of the Last Clear Chance doctrine and dismissed the lawsuit on demurrer.
On appeal, the Supreme Court agreed that the Estate presented sufficient facts in the Complaint to allow application of Last Clear Chance under the inattentive plaintiff version of the doctrine. The Court firmly repudiated the defendant’s argument with regard to continuing negligence and reversed underlying dismissal of the case and remanded the lawsuit for further proceedings. With emphatic language, the Court stated, “[t]here can be little doubt” the allegations of the Coutlakis lawsuit met the standard for application of Last Clear Chance. This case potentially breathes new life into this doctrine and the lawyers at KPM will be following these proceedings closely. Rest assured that we will keep our clients abreast of any pertinent developments as it relates to this case and application and/or extension of the Last Clear Chance Doctrine.