In personal injury law, liability is usually determined by establishing who was at fault for the injury. Personal Injury cases, also often referred to as Torts, are generally based on allegations of either intentional or negligent conduct. In most states, negligent behavior that causes injury creates liability for the injury. 

Contributory Negligence

North Carolina, however, adheres to the "contributory negligence" doctrine, meaning that a plaintiff whose own negligence (failure to exercise due care for his own safety) contributed to his injury should not recover any damages for the injury. This is true even in a situation where the defendant is 90% at fault! The theory behind the policy is that the injury would not have happened absent the plaintiff's contribution, so the other person (or, more accurately, their insurance company) should not have to pay for it. North Carolina is one of only four states in the union that adheres to a "pure" contributory negligence rule- most other states follow a "comparative negligence" model, allowing juries to decide what percentage each side was at fault, and allowing recovery of damages for injuries only in proportion to fault (for example, an individual with $100 in damages that was found to be 15% at fault can only recover $85). 

To mitigate this seemingly unfair approach, North Carolina also recognizes the "last clear chance" rule- if the plaintiff can establish by a preponderance of the evidence (more likely than not) that the defendant in fact had the last clear opportunity to avoid the injury causing event, the defendant is liable and the plaintiff's contributory negligence is excused. 

In a recent case, Scheffer v. Dalton, the North Carolina Court of Appeals revisited the "last clear chance" doctrine in the context of a moped driver who was using a bicycle light at night and was struck and killed by another motorist. In the case, the trial judge refused the plaintiff's request for a jury instruction regarding last clear chance, because "there was no evidence (the defendant) ever saw (the moped driver)." The jury found that the defendant's negligence caused the death, but that the moped driver was contributorily negligent. The Court of Appeals took issue with the judge's rationale for refusing the instruction, and returned the case to the trial court for a new trial. 

 The Last Clear Chance Rule 

 A plaintiff has the burden of proving the defendant had the last clear chance to avoid an injury causing incident and was thus responsible for the plaintiff's injuries despite plaintiff's contributory negligence. The issue must be submitted to a jury (through the court's instructions of law provided to juries to instruct their deliberations at the end of a case) if the evidence, viewed in the light most favorable to the plaintiff, supports a reasonable inference of each element of the doctrine. As quoted in Scheffer, the NC Supreme Court has explained the "elements" a plaintiff must establish to invoke the last clear chance doctrine. According to the Court, when an injured plaintiff who has been guilty of contributory negligence invokes the last clear chance doctrine, she must establish:

 (1) That the [plaintiff] negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care;

 (2) that the (defendant) motorist knew, or by the exercise of reasonable care could have discovered, the [plaintiff's] perilous position and his incapacity to escape from it before the endangered [plaintiff] suffered injury at his hands;

 (3) that the motorist had the time and means to avoid injury to the endangered [plaintiff] by the exercise of reasonable care after he discovered, or should have discovered, the [plaintiff's] perilous position and his incapacity to escape from it; and

 (4) that the motorist negligently failed to use the available time and means to avoid injury to the endangered [plaintiff], and for that reason struck and injured him. 

Thus, giving the plaintiff the benefit of the doubt, if the evidence presented during a personal injury trial supports a reasonable inference that the defendant knew or should have known of the plaintiff's self-imposed peril, had time to prevent the injury through the exercise of reasonable care, and failed to use the opportunity to prevent the injury, a jury must be given the appropriate "last clear chance" instruction. In Scheffer, even though the moped driver endangered himself by negligently failing to use adequate lighting on his moped, a jury could have found that the defendant driver of the car should have seen him in time to prevent the collision. The court's instruction to the jury is a crucial part of the process, and in Scheffer the Court of Appeals ruled that the trial judge's failure to properly instruct the jury on the law of "last clear chance" had a sufficient potential to prejudice the case to justify a new trial. 

Personal injury cases can be tricky, especially when the fact-specific issues of contributory negligence and "last clear chance" doctrine are involved. The North Carolina personal injury lawyers at Edelstein & Payne have experience litigating these cases, and are available for consultation or representation. We only represent individuals, and never the insurance companies whose primary concern is the shareholders' bottom line. Personal injury consultations are free of charge, and can be scheduled by submitting your information through our online form or by calling us at 919-828-1456.