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Last Clear Chance Doctrine in Maryland

The last clear chance doctrine is a frequently litigated and extremely confusing exception to Maryland’s contributory negligence law.  Even the names are confusing.  The doctrine has also been called the doctrine of discovered peril,  supervening negligence, subsequent negligence, and the aptly named humanitarian doctrine.  The most common incorrect assumption is that it is a defense to the case. In fact, the opposite is true.

What Is the Doctrine of Last Clear Chance?

The gist of the doctrine is that even if the plaintiff contributed to her own injury, her lawsuit will not be barred if the defendant had a clear opportunity after the plaintiff had put herself peril, to avoid the injury by the exercise of ordinary care. Another way to frame this same idea is that 'if the defendant has the last clear opportunity to avoid the harm, the plaintiff's negligence is not a 'proximate cause' of the result" (Prosser, Law of Torts § 66).

So the way this works, at least in Maryland, is that the jury can find contributory negligence but still award damages if it found that the defendant blew a last clear chance to avoid the accident.

What Is Maryland Last Clear Chance Law?

The intellectual underpinning of this doctrine is that you can't just harm someone because they are negligent if you have a clean shot at avoiding the harm. So if a defendant has either actual knowledge, or is under some legal duty which charges him with knowledge, (a) that if he persists in a course which he is pursuing it will result in injury to another, (b) which the other cannot, because of ignorance or disability, be reasonably expected to avoid, (c) when the actor either has or is chargeable with that knowledge in time by the exercise of ordinary care to avoid injuring the plaintiff, but (d) fails to do so. Quinn v. Glackin, 31 Md. App. 247, 251-52, 355 A.2d 523, 526 (1976).

In Nationwide Mut. Ins. Co. v. Anderson, 160 Md. App. 348, (2004) this Maryland Court of Special Appeals explained Maryland law:

The doctrine of last clear chance permits a contributorily negligent plaintiff to recover damages from a negligent defendant if each of the following elements is satisfied: (i) the defendant is negligent; (ii) the plaintiff is contributorily negligent; (iii) the plaintiff makes “a showing of something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence.

Fresh Opportunity Needed

If both parties’ negligence are concurrent, last clear chance does not apply.   “In other words, the defendant must have  avoided the injury after the plaintiff’s negligent action was put in motion.” Id. at 357. So the doctrine requires that initial negligence of both parties there must be a second shot by the defendant to avoid the accident.  If the defendant is just committing one continuing act of negligence, the doctrine does not apply.

This law is reflected in Maryland’s jury instructions. MCPJI 19:14, Last Clear Chance states that “[a] plaintiff who was contributorily negligent may nevertheless recover if the plaintiff was in a dangerous situation and thereafter the defendant had a fresh opportunity of which defendant was aware to avoid injury to the plaintiff and failed to do so.

Carter v. Senate Masonry: Last Clear Chance Still Alive

Maryland’s appellate courts looked at the doctrine anew in Carter v. Senate Masonry, Inc., 156 Md. App. 162 (2004) after a long hiatus.  Maryland’s intermediate appellate court had an opportunity to modify last clear chance. But it didn’t although one judge thought that they should.  The majority affirmed that the doctrine of last clear chance imposes liability on the defendant if she is “aware of the danger and is in control of the instrumentality and thus in a position to avoid the impending danger.”

In Carter, a Prince George’s County judge took away a 216,000 jury verdict from a worker on the construction of a new Safeway in Columbia who was seriously injured when a forklift dropped cinder blocks on him.  But the Maryland Court of Special Appeals found that a reasonable jury could have “found from the evidence in this case an account of two men acting dangerously on a construction site, but with one man having superior knowledge of the impending danger, as well as the superior ability, the last clear chance, to avert it.

Key Maryland Cases Applying the Doctrine

  • Wooldridge v. Price, 184 Md. App 451 (2009).  A 44-year-old man is hit by a car and killed in Silver Spring while skateboarding. This Maryland Court of Appeals affirmed the granting of summary judgment, finding the doctrine inapplicable because the defendant’s negligence had to be one brief but continuing event so there was should not have been that last chance moment.  This case underscores the “fresh opportunity” requirement.
  • Carter v. Senate Masonry, Inc., 156 Md. App. 162 (2004). We talk about this case a bit above.  A plumber building a new Safeway in Columbia stopped and knelt down near a scaffold to search for some parts. This is contributory negligence.  But that didn’t end the analysis.   A forklift driver delivered a cube of cinder blocks to the scaffold with the forklift. After a critical pause (fresh opportunity), the forklift driver put a pan of mortar upon the cube of cinder blocks. This caused the blocks to fall on the victim.  The appellate court found that pause to be a fresh opportunity to avoid the accident.
  • Cohen v. Rubin, 55 Md. App. 83, cert. den’d, 297 Md. 311 (1983).  The defendant is drinking and driving at an excessive rate of speed.  The defendant argues contributory negligence because the decedent violated Section 21-503(a) of the Transportation Code.  This Maryland law requires a pedestrian to yield the right-of-way to a vehicle on the road when crossing in between intersections. But the court held that the evidence supported an instruction on last clear chance.
  • Johnson v. Dortch, 27 Md. App. 605 (1975)
  • State v. Gosnell, 197 Md. 381 (1951)
  • Baltimore & O.R. Co. v. Leasure, 193 Md. 523 (1949). A pedestrian tries to cross railroad tracks and is hit by a train.  The evidence suggests a railroad crossing watchman is distracted by two other pedestrians alongside the tracks.  He has plenty of time to stop the train.  Maryland’s high court found that the watchman’s “failure to see what other bystanders saw might, under the circumstances, be considered a negligent act subsequent to the plaintiff’s negligence in stepping on the track, and thus raise the issue of last clear chance.”
  • Shedlock v. Marshall, 186 Md. 218, 46 A.2d 349 (1946).
  • Jones v. Dickerson, 184 Md. 499 (1945).
  • Thursby v. O’Rourke, 180 Md. 223 (1942). The defendant pulls off from the shoulder to travel south.  But he argues that the plaintiff darted out to the center of the road without yielding the right-of-way to cars on the road.  The plaintiff receives a last clear chance instruction based on evidence that the defendant failed to keep a proper lookout to avoid injury.  Maryland high court held that the instruction on last clear chance by the trial court was correct.
  • Caple v. Amoss, 181 Md. 56 (1942).
  • Longenecker v. Zanghi, 175 Md. 307 (1938).