North Carolina is one of the last bastions of contributory negligence; only 3 other states still apply a pure contributory negligence standard. Contributory negligence acts as a complete bar to a plaintiff's ability to recover damages in a negligence or personal injury lawsuit. If a plaintiff is responsible for the accident in any way, even just 1%, then there is no recovery.1 When litigating commercial vehicle accidents in North Carolina, defendants often get a sense of security when they learn that North Carolina is a pure contributory negligence state. This sense of security, however, is often short-lived. Studies examining fault in truck-car crashes report that more than 70% of truck-car crashes are caused by some passenger vehicle action. Based on this information, one would expect that a corresponding number of civil lawsuits would be summarily dismissed (or never filed) due to a plaintiff's contributory negligence. However, as we know, that is not the case. One reason that a plaintiff's negligence would not absolve a defendant of liability is in the situation where a defendant could have avoided an accident notwithstanding a plaintiff's negligence. This theory is known as the last clear chance doctrine, and it has the potential to negate the draconian result of a plaintiff's contributory negligence.
A recent case in the North Carolina Court of Appeals, John James Scheffer, Individually and as Administrator of the Estate of Jeremy Talbot Scheffer, Deceased, v. Nathaniel Eugene Dalton, 777 S.E.2d 534 (N.C. Ct. App. 2015), illustrates how the last clear chance doctrine and contributory negligence interrelate in litigation. In Scheffer, the decedent, James Scheffer, used a moped as his primary means of transportation. Id. at 537. The factory-installed headlight on Scheffer's moped was broken. As a replacement, Scheffer installed a battery powered bicycle light to the front of his moped. Id. The bicycle light was not intended for use on a moped and provided inadequate lighting. Id. at 538. On November 27, 2010, at approximately 6:30 p.m., Scheffer left his job and headed home on his moped. Id. at 537.While en route, several witnesses saw Scheffer prior to the subject accident; each witness described observing a very faint light, if any light at all. Id. These same witnesses could not associate the "light" they observed with a moped; rather, they indicated that they observed a "streak." Id. Scheffer was travelling north on Highway 115. The defendant, Dalton, was travelling south on Highway 115. Id. Dalton approached an intersection where he intended to make a left-hand turn. Id. This intersection had a designated left turn lane and was controlled by a traffic light. As Dalton approached the intersection, he entered the turning lane and had a green light. Id. Dalton did not come to a complete stop prior to turning; rather, he allowed an approaching passenger vehicle to pass and he then commenced his left turn early and before entering into the intersection. Id. at 538. As Dalton was completing his turn, he struck Scheffer in Scheffer's lane of travel. Id. Dalton testified at trial that after the approaching northbound passenger vehicle passed and before he commenced his left turn, he did not see any other vehicles or Scheffer. Id. Scheffer died as a result of injuries sustained in this accident.
At trial, the jury returned a verdict in favor of Dalton; the jury found that Scheffer was contributorily negligent and, accordingly, his estate was barred from recovering damages. Id. at 539. The jury did not consider whether Dalton had the last clear chance to avoid the accident. The trial judge denied plaintiff's counsel's request to submit the issue of last clear chance to the jury for the reason that Dalton did not see Scheffer prior to the accident. Id. The Court reasoned that Dalton could not have had the last clear chance to avoid Scheffer and prevent the accident if Dalton never saw Scheffer in the first place. Id. Plaintiff appealed the trial court's decision to submit the issue of contributory negligence to the jury and the denial of the request to submit the issue of last clear chance to the jury. Id.
The North Carolina Court of Appeals concluded that there was ample evidence presented on the issue of contributory negligence and that this issue was appropriately submitted to the jury. Id. at 542. The Court noted that a plaintiff may be "contributorily negligent if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety." Id. at 541 (citing Smith v. Fiber Controls Corp., 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980)). Evidence that Scheffer was operating a moped at night, utilizing a battery-powered bicycle light as opposed to the factory installed headlamp, and that the bicycle light emitted a very faint light, among other factors, was sufficient evidence to submit the issue of contributory negligence to the jury. Id. at 542. The Court of Appeals next addressed the issue of whether the last clear chance doctrine should also have been considered by the jury. Id. The last clear chance doctrine enables "a plaintiff who is unable to avoid the harm placing him in helpless peril immediately before the accident which results in his injury [to] recover against a defendant who has the means and ability to avoid the accident but fails to do so." Id. at 543 (citing Overton v. Purvis, 154 N.C. App. 543, 545, 573 S.E.2d 219, 224 (2002)). The Court of Appeals concluded that sufficient evidence was presented, and the jury should have considered whether Dalton had the last clear chance to avoid the accident. In reaching this conclusion, the Court noted that Scheffer placed himself in a perilous position by operating a moped with insufficient lighting; Dalton owed a legal duty to keep a lookout for oncoming traffic and maintain control over his vehicle. Had Dalton exercised reasonable care, he could have avoided the accident. Id. It is important to bear in mind that the last clear chance doctrine contemplates a last "clear" chance, not the last "possible" chance to avoid an accident. Id. at 544. Ultimately, the Court of Appeals remanded the case back to the trial court for a new trial and did not decide the ultimate issue of whether Dalton could have prevented the subject accident.
The Scheffer case serves as a reminder that transportation companies should not be lured into a false sense of security based on an initial evaluation of fault. The last clear chance doctrine has the potential to turn the tables during the course of litigation. In a commercial motor vehicle accident, it is not uncommon to have a situation where a potential claimant or plaintiff has violated a traffic or safety statute, or has otherwise engaged in unsafe behavior putting him or her in harm's way. Transportation companies should remain vigilant when conducting an accident investigation and preserving relevant information in situations of questionable fault. Perform the necessary due diligence up front, be thorough, and then, two or three years down the road if a lawsuit is filed, you will be well-positioned to defend your business regardless of the underlying circumstances.
1 See Brewer v. Harris, 279 N.C. 288, 298, 182 S.E.2d 345, 350 (1971).
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