last clear chance doctrine in Louisiana

1966Appellants therefore rely primarily upon the last clear chance doctrine and cite the following authorities to support their position : Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 (1952) ; Belshe v. Gant, 235 La. 17 , 102 So.2d 477 (1958) ; Zachery v. Southern Farm Bureau Casualty Insurance Co., La.App., 116 So.2d 847 (1st Cir. 1959) ; Broussard v. Thompson, La.App., 128 So.2d 477 (3rd Cir. 1961); Campisi v. Fidelity & Casualty Co. of New York, La.App., 152 So.2d 88 (3rd Cir. 1963).

1966Appellants therefore rely primarily upon the last clear chance doctrine and cite the following authorities to support their position : Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 (1952) ; Belshe v. Gant, 235 La. 17 , 102 So.2d 477 (1958) ; Zachery v. Southern Farm Bureau Casualty Insurance Co., La.App., 116 So.2d 847 (1st Cir. 1959) ; Broussard v. Thompson, La.App., 128 So.2d 477 (3rd Cir. 1961); Campisi v. Fidelity & Casualty Co. of New York, La.App., 152 So.2d 88 (3rd Cir. 1963).

1962In the case of Maryland Casualty Company v. Allstate Insurance Company (La.App., 2 Cir., 1957), 96 So.2d 340 , the court said that before the doctrine of last clear chance may be applied in any given case, three (3) elements must exist: plaintiff must be in a position of peril of which he is unaware or unable to extricate himself; defendant must be in a position where he actually discovered, or should have discovered, the plaintiff's peril; and, defendant should have discovered the plaintiff's peril at such time as he could have, by the exercise of reasonable care, avoided the accident.

1961In the last cited case we observed: "* * * we hesitate in cases where the last clear chance doctrine is relied upon to relieve a party of his negligent acts except when opportunity presented the other party to avert the accident is manifest." Id., at page 344.

1961"Up to the time the Court of Appeal decided the Rottman Case, 162 So. 73 , the jurisprudence relating to the last clear chance doctrine was confusing.

1960In Jackson v. Cook, supra, we find the following: “Up to the time the Court of Appeal decided the Rottman case, 162 So. 73 , the jurisprudence relating to the last clear chance doctrine was confusing.

1984“It is too well established to require citation of authority that the doctrine of last clear chance is applied only in instances where the facts indicate the reasonable possibility of the avoidance of an accident, despite the contributory negligence of the other driver.” Clark v. Shannon, 120 So.2d 307 , (La.App. 2nd Cir.1960), at 309.

1963"The facts in this case are similar to those in Clark v. Shannon, La.App.1960, 120 So.2d 307, 308 , where the Court of Appeal, Second Circuit, in holding that the doctrine of last clear chance was not applicable, said: "`Nor can we find from our examination of the record any facts which would support the application of the doctrine of last clear chance.

1971Plaintiff having failed to prove facts essential to the doctrine of last clear chance, he cannot successfully invoke that doctrine, Lawrence v. Core, 132 So.2d 82 (La.App. 3rd Cir. 1961); Franicevich v. Lirette, 241 La. 466 , 129 So.2d 740 (1961); Pate v. State Farm Mutual Automobile Insurance Co., 147 So.2d 766 (La.App. 1st Cir. 1962); Campisi v. Fidelity and Casualty Co. of New York, 152 So.2d 88 (La.App. 3rd Cir. 1963); Evans v. Johnson, 236 So.2d 285 (La.App. 4th Cir. 1970); Coleman v. Mason, 174 So.2d 655 (La.App. 3rd Cir. 1965); Jones v. Dozier, 160 So.2d 395 (La.App. 1st Cir. 1964); Kwo

1965In Jones v. Dozier, La.App., 160 So.2d 395 , we stated the rule as follows: “The jurisprudence of this state is well established to the effect that to warrant application of the doctrine of last clear chance, plaintiff must discharge the burden of establishing three basic factors by a clear preponderance of the evidence.

1971In the case of Lavigne v. Southern Farm Bureau Casualty Insurance Company, La.App., 125 So.2d 430 , the court said: “For the successful invocation of the doctrine of last clear chance, the existence or presence of three essential elements must be established: First, that the other person was in a position of peril of which he was unaware or from which he was unable to extricate himself; second, that the person against whom such doctrine is charged actually discovered or was in a position where he should have and could have discovered such other person’s peril; and, third, that at the time the

1962Co., La.App., 125 So.2d 430 , stated: “For the successful invocation of the doctrine of last clear chance, the existence or presence of three essential elements must be established: First, that the other person was in a position of peril of which he was unaware or from which he was unable to extricate himself; second, that the person against whom such doctrine is charged actually discovered or was in a position where he should have and could have discovered such other person’s peril; and, third, that at the time the person charged with responsibility could have, with the exercise of reasonable

1964In Breaux v. Meyers (La.App., 3 Cir., 1961), 132 So.2d 77, this Court held that three elements are necessary to recover under the doctrine of last clear chance, namely: “ 1 “ * * * (a) plaintiff in a position of peril of which he was unaware of unable to extricate himself; (b) defendant in a position where he actually discovered, or shotdd have discovered, the plaintiff’s peril; (c) at such time that the defendant could have by the exercise of reasonable care, avoided the accident. * * * ” The record is to the effect that plaintiff was attempting to help Touchet; that Touchet had no reason to

1963In Breaux v. Meyers (La.App., 3 Cir., 1961), 132 So.2d 77 , this Court held that three elements are necessary to recover under the doctrine of last clear chance, namely: " * * * (a) plaintiif in a position of peril of which he was unaware or unable to extricate himself; (b) defendant in a position where he actually discovered, or should have discovered, the plaintiff’s peril; (c) at such time that the defendant could have by the exercise of reasonable care, avoided the accident. * * * ” ’ ” After examining the record, this Court is of the opinion that plaintiif, as a prudent person, if he was

1982And since, in such case, a plaintiff's contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue." ( 356 So.2d 400, 406 ).

1980Co., 356 So.2d 400 (La. 1978), the court stated: The last clear chance doctrine was created to escape the harsh effects of the contributory negligence defense which operates, in its strict application, as an absolute bar to a plaintiff's recovery.

1962Co., 189 La. 1042 , 181 So. 485 ; Newton v. Pacillo, La.App., 111 So.2d 895 ; Moore v. Shreveport Transit Co., La.App., 115 So.2d 218 .

1962Co., 189 La. 1042 , 181 So. 485 ; Newton v. Pacillo, La.App., 111 So.2d 895 ; Moore v. Shreveport Transit Co., La.App., 115 So.2d 218 .

1961The Supreme Court in Bergeron v. Department of Highways, supra, quoted with approval the following language from Hutcheson v. Misenheimer, 169 Va. 511 , 194 S.E. 665 , 667: "The doctrine of the last clear chance is one involving nice distinctions, often of a technical nature, and courts should be wary in extending its application." [ 221 La. 595 , 60 So.2d 8 .] In Maryland Casualty Company v. Allstate Insurance Company, La.App. 2 Cir., 96 So.2d 340, 344 , which involved facts similar to those presented here, the Court, after quoting the above language from the Bergeron and Hutcheson cases, sai

1961The Supreme Court in Bergeron v. Department of Highways, supra, quoted with approval the following language from Hutcheson v. Misenheimer, 169 Va. 511 , 194 S.E. 665 , 667: "The doctrine of the last clear chance is one involving nice distinctions, often of a technical nature, and courts should be wary in extending its application." [ 221 La. 595 , 60 So.2d 8 .] In Maryland Casualty Company v. Allstate Insurance Company, La.App. 2 Cir., 96 So.2d 340, 344 , which involved facts similar to those presented here, the Court, after quoting the above language from the Bergeron and Hutcheson cases, sai

1973Sorrell v. Allstate Insurance Company, La.App., 179 So.2d 499 , as well as Sales v. Guillory, La.App., 188 So.2d 429 ." Plaintiff has argued that in the event he is found to be negligent, the defendant is also negligent, thereby allowing the doctrine of last clear chance to be applied.

1967The latest expression of the law relative to the doctrine of last clear chance is set forth in the recent case of Sales v. Guillory, 188 So.2d 429 (La.App.1966), in which it is stated as follows: "Our jurisprudence is now established that in order to apply the humanitarian doctrine of last clear chance, plaintiff must prove clearly three elements exist: (1) plaintiff must be in a position of peril of which he is unaware, or from which he is unable to extricate himself; (2) plaintiff must show that defendant actually discovered, or should have discovered plaintiff’s peril; (3) at the time that

1971Plaintiff having failed to prove facts essential to the doctrine of last clear chance, he cannot successfully invoke that doctrine, Lawrence v. Core, 132 So.2d 82 (La.App. 3rd Cir. 1961); Franicevich v. Lirette, 241 La. 466 , 129 So.2d 740 (1961); Pate v. State Farm Mutual Automobile Insurance Co., 147 So.2d 766 (La.App. 1st Cir. 1962); Campisi v. Fidelity and Casualty Co. of New York, 152 So.2d 88 (La.App. 3rd Cir. 1963); Evans v. Johnson, 236 So.2d 285 (La.App. 4th Cir. 1970); Coleman v. Mason, 174 So.2d 655 (La.App. 3rd Cir. 1965); Jones v. Dozier, 160 So.2d 395 (La.App. 1st Cir. 1964); Kwo

1971Plaintiff having failed to prove facts essential to the doctrine of last clear chance, he cannot successfully invoke that doctrine, Lawrence v. Core, 132 So.2d 82 (La.App. 3rd Cir. 1961); Franicevich v. Lirette, 241 La. 466 , 129 So.2d 740 (1961); Pate v. State Farm Mutual Automobile Insurance Co., 147 So.2d 766 (La.App. 1st Cir. 1962); Campisi v. Fidelity and Casualty Co. of New York, 152 So.2d 88 (La.App. 3rd Cir. 1963); Evans v. Johnson, 236 So.2d 285 (La.App. 4th Cir. 1970); Coleman v. Mason, 174 So.2d 655 (La.App. 3rd Cir. 1965); Jones v. Dozier, 160 So.2d 395 (La.App. 1st Cir. 1964); Kwo

1971Plaintiff having failed to prove facts essential to the doctrine of last clear chance, he cannot successfully invoke that doctrine, Lawrence v. Core, 132 So.2d 82 (La.App. 3rd Cir. 1961); Franicevich v. Lirette, 241 La. 466 , 129 So.2d 740 (1961); Pate v. State Farm Mutual Automobile Insurance Co., 147 So.2d 766 (La.App. 1st Cir. 1962); Campisi v. Fidelity and Casualty Co. of New York, 152 So.2d 88 (La.App. 3rd Cir. 1963); Evans v. Johnson, 236 So.2d 285 (La.App. 4th Cir. 1970); Coleman v. Mason, 174 So.2d 655 (La.App. 3rd Cir. 1965); Jones v. Dozier, 160 So.2d 395 (La.App. 1st Cir. 1964); Kwo

1966Appellants therefore rely primarily upon the last clear chance doctrine and cite the following authorities to support their position : Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 (1952) ; Belshe v. Gant, 235 La. 17 , 102 So.2d 477 (1958) ; Zachery v. Southern Farm Bureau Casualty Insurance Co., La.App., 116 So.2d 847 (1st Cir. 1959) ; Broussard v. Thompson, La.App., 128 So.2d 477 (3rd Cir. 1961); Campisi v. Fidelity & Casualty Co. of New York, La.App., 152 So.2d 88 (3rd Cir. 1963).

1970Mc-Callum v. Adkerson, La.App., 126 So.2d 835 ; Whitner v. Scott, La.App., 116 So. 2d 180 .” We believe the plaintiff was in a position of peril of which he was unaware.

1966McCallum v. Adkerson, La.App., 126 So.2d 835 ; Whitner v. Scott, La.App., 116 So.2d 180 ." The driver of an automobile has the right to assume that a pedestrian will exercise reasonable care for his own protection and will not leave a position of safety and proceed into the path of an oncoming vehicle.

1970This Court in Accardo v. Grain Dealers Mutual Insurance Company, 151 So.2d 116 , said: “It is the settled jurisprudence of this state that for the doctrine of last clear chance to apply, plaintiff bears the burden of establishing the following factors by a clear preponderance of evidence, namely: (1) that plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) that defendant was in a position to discover plaintiff’s peril; and (3) that when defendant discovered plaintiff’s peril he had reasonable opportunity to avoid the accident.

1966In Accardo v. Grain Dealers Mutual Insurance Company, La.App. 1 Cir., 151 So.2d 116, 121 , we set out the following rules as to the doctrine of Last Clear Chance: "It is the settled jurisprudence of this state that for the doctrine of last clear chance to apply, plaintiff bears the burden of establishing the following factors by a clear preponderance of evidence, namely: (1) that plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) that defendant was in a position to discover plaintiff's peril; and (3) that when defendant discovered

1962McCarthy v. Blair, La.App., 122 So.2d 837 ; Nugent v. Milburn, La.App., 47 So.2d 377 ; Morris v. Weaver, La.App., 81 So.2d 19 .

1954Neither was keeping a proper lookout nor making proper observations under the facts and circumstances, and the accident could have been avoided by the exercise of due diligence by either party as was stated in Nugent v. Milburn, La.App., 47 So.2d 377 , 379: “Inasmuch as the negligence of both parties is found in their respective failure to maintain a lookout, the facts do not justify the application of the last clear chance doctrine as against either.” See also Coleman v. Smith, La.App., 63 So.2d 171 .

1962Co., 189 La. 1042 , 181 So. 485 ; Newton v. Pacillo, La.App., 111 So.2d 895 ; Moore v. Shreveport Transit Co., La.App., 115 So.2d 218 .

1961Lavigne v. Southern Farm Bureau Casualty Insurance Co., La.App., 125 So. 2d 430 ; Moore v. Shreveport Transit Co., La.App., 115 So.2d 218 .