Last Clear Chance

To prove a case for negligence, the Plaintiff bears the Burden of Proof. The legal standard is “by the preponderance of evidence.”

The Plaintiff must show, “by the greater weight of evidence” that “more likely than not” something did or did not occur.

The essential elements for negligence include answering questions such as:

1. Did the Defendant owe the Plaintiff a legal duty to do or not do something?
2. Did the Defendant breach the duty or standard of care?
3. Was the Plaintiff injured as a result of the breach of duty?
4. Was such negligent act the proximate cause of Plaintiff’s damages/injuries?

Even in instances when the Plaintiff can present evidence of Defendant’s negligence, the Plaintiff will not prevail in a civil cause of action when it is found the Plaintiff was contributorily negligent.

A pedestrian who is crossing a roadway is required to yield right-of-way to vehicles, if crossing in an unmarked crosswalk or outside a marked crosswalk. N.C.G.S. 20-174(a)

The pedestrian must maintain a lookout when crossing. They are required to protect their own safety. That requires an exercise of reasonable care.

Just because a crossing pedestrian does not understand the danger or is otherwise oblivious to it, no duty or standard of care is imposed on motorists to yield right-of-way to the pedestrian.

A duty may thereafter arise on the part of the traveling vehicle if, and only if, the motorist sees the pedestrian is not aware of the danger.

The Defendant is charged with the exercise of reasonable care in determining whether the pedestrian will expose themselves to danger and/or is not aware of an approaching danger in crossing the roadway.

Violation of the NC crosswalk law in N.C.G.S. 20-174(a) is not per se (in-and-of-itself) contributory negligence.

Failure of the pedestrian to yield right-of-way to vehicular traffic may, as a matter of law, constitute contributory negligence.

A sitting judge may therefore “nonsuite” the Plaintiff who is a pedestrian who is contributorily negligent, if the evidence clearly establishes:

1. Plaintiff’s failure to yield right-of-way; and,
2. Such failure to yield is a proximate cause to Plaintiff’s injury/damages; and,
3. No other reasonable conclusion could be drawn or is possible.

The NC accident laws impose on the party seeking damages the duty to protect him or herself, using the legal standard of “ordinary care.”

Pedestrians therefore have the duty to keep a proper lookout as crossing lanes of traffic. The level of vigilance in exercise that care and proper lookout is directly related to the level of danger the Plaintiff creates and/or exposes oneself to in so crossing.

In the event the Defendant had the “last clear chance” to avoid an accident or wreck, the Plaintiff may still recover damages even if the Plaintiff was contributorily negligent.

If the Defendant had the last clear chance to avoid an accident, they must take action. Failure to do so may result in legal liability.

The doctrine of last clear chance assumes pre-existing negligence of the defendant as well as Plaintiff’s contributory negligence.

Using the same pedestrian example, the Plaintiff arguing last clear chance and who is responsible due to contributory negligence is required to prove:

1. Plaintiff placed him or herself in a position of peril; and,
2. Plaintiff could not escape the position of peril through exercising reasonable care; and,
3. Defendant motorist was negligent in failing to use the means and time available to avoid injuring the pedestrian in danger; and,
4. Defendant could or should have discovered, exercising reasonable care, the Plaintiff’s peril and the inability to escape the peril; and,
5. Defendant struck the pedestrian and injured the pedestrian because the Defendant failed to avoid injuring the endangered pedestrian.

Last clear chance is not the same thing as last possible chance. It requires another person (a “reasonably prudent man”), faced with a like or similar chance to avoid an accident, could have acted effectively.

The Doctrine does not apply in instances where the Plaintiff is in control of the danger and “simply chooses to take the risk.” The Plaintiff therefore is incapable of avoiding the danger or peril, even if they placed themselves in that position.

1. Contributory Negligence in North Carolina
2. Comparative Negligence in South Carolina
3. Negligence is not an Accident
4. Are Recorded Statements Required?

If you Googled, “Lawyers Near Me” and are looking for an attorney who can provide legal representation for accident cases, we’re here to help.

Our law firm is dedicated to helping injured people recover things like lost wages, medical bills, and fair compensation for permanent injuries.

We never represent insurance companies or serve as legal counsel defending against personal injury claims.

Legal consultations for accident cases are free of charge. It costs nothing to call our law office, schedule an in-person office visit or secure remote video conference.

Everything you tell our injury lawyers and support staff is strictly confidential.

If it helps you, we can even visit you at the hospital, at home, or in a rehabilitation facility.

We want to make the process easy on you. It’s important for you to focus on getting healthy.

Let us undertake the burden of presenting a claim for damages with the insurance company and negotiating a recovery with the insurance adjuster.

That’s what we do. We help people who were harmed due to the negligence of others.

And as this page indicates, even if you were in part responsible for your own injuries, there may be legal grounds for recovery.

Each client, like each case, is different.

Call NOW for a free consultation regarding your personal injury matter: 704-342-4357

Bill Powers is also available by email: Bill@CarolinaAttorneys.com

Bill Powers is a former President of the North Carolina Advocates for Justice and committed advocate for victims in negligence claims.