last clear chance doctrine in North Carolina

2017App. 242 , 249, 254 S.E.2d 665 , 670 (1979) (emphasis added); see also Exum v. Boyles , 272 N.C. 567 , 577, 158 S.E.2d 845 , 854 (1968) (noting that "to invoke the doctrine of the last clear chance[,] the plaintiff must plead it and the burden of proof is upon him." (citations omitted)).

2017App. 242 , 249, 254 S.E.2d 665 , 670 (1979) (emphasis added); see also Exum v. Boyles , 272 N.C. 567 , 577, 158 S.E.2d 845 , 854 (1968) (noting that "to invoke the doctrine of the last clear chance[,] the plaintiff must plead it and the burden of proof is upon him." (citations omitted)).

2001In Vancamp v. Burgner, 328 N.C. 495 , 402 S.E.2d 375 , reh’g denied, 329 N.C. 277 , 407 S.E.2d 854 (1991), our Supreme Court enumerated the elements that a plaintiff must establish to invoke the doctrine of last clear chance: *65 ‘All the necessary elements of the doctrine [of last clear chance] are ... as follows: ‘Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these four elements: (1) That the pedestrian negligently place

2001In Vancamp v. Burgner, 328 N.C. 495 , 402 S.E.2d 375 , reh’g denied, 329 N.C. 277 , 407 S.E.2d 854 (1991), our Supreme Court enumerated the elements that a plaintiff must establish to invoke the doctrine of last clear chance: *65 ‘All the necessary elements of the doctrine [of last clear chance] are ... as follows: ‘Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these four elements: (1) That the pedestrian negligently place

2000Thus, from plaintiffs evidence a jury reasonably could infer both that defendant had the time and means to avoid the collision, and that defendant negligently failed to use the available time and means to avoid injury to plaintiff, Vancamp, 328 N.C. at 500 , 402 S.E.2d at 378 , satisfying both the third and fourth elements of the last clear chance test, see Wade, 239 N.C. at 525 , 80 S.E.2d at 151 .

2000Thus, from plaintiffs evidence a jury reasonably could infer both that defendant had the time and means to avoid the collision, and that defendant negligently failed to use the available time and means to avoid injury to plaintiff, Vancamp, 328 N.C. at 500 , 402 S.E.2d at 378 , satisfying both the third and fourth elements of the last clear chance test, see Wade, 239 N.C. at 525 , 80 S.E.2d at 151 .

1994See also Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 448 , 35 S.E.2d 337, 340 (1945) (doctrine of last clear chance is "invoked only in the event it is made to appear that there was an appreciable interval of time between plaintiff's negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff's prior negligence"); Mathis v. Marlow, 261 N.C. 636, 639 , 135 S.E.2d 633, 635 (1964).

1994See also Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 448 , 35 S.E.2d 337, 340 (1945) (doctrine of last clear chance is "invoked only in the event it is made to appear that there was an appreciable interval of time between plaintiff's negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff's prior negligence"); Mathis v. Marlow, 261 N.C. 636, 639 , 135 S.E.2d 633, 635 (1964).

2002The thrust of the last clear chance doctrine “is that a negligent plaintiff who is unable to avoid the harm placing her in helpless peril immediately before the accident which results in her injury may recover against a defendant who has the means and ability to avoid the accident but fails to do so.” Trantham, 121 N.C.

1999App. 611 , 468 S.E.2d 401 , disc. review denied, 343 N.C. 311 , 471 S.E.2d 82 (1996), our Court said, The issue of last clear chance, “[m]ust be submitted to the jury if the evidence, when viewed in the light most favorable to the plaintiff, will support a reasonable inference of each essential *33 element of the doctrine.” To obtain an instruction on the doctrine of last clear chance, the plaintiff must show the following essential elements: 1) The plaintiff, by her own negligence put herself into a position of helpless peril; 2) Defendant discovered, or should have discovered, the position o

2015The doctrine of last clear chance "contemplates a last 'clear' chance, not a last 'possible' chance to avoid the accident; it must have been such a chance as would have enabled a reasonably prudent man in like position to have acted effectively." Battle v. Chavis, 266 N.C. 778 , 781, 147 S.E.2d 387 , 390 (1966).

2015The doctrine of last clear chance "contemplates a last 'clear' chance, not a last 'possible' chance to avoid the accident; it must have been such a chance as would have enabled a reasonably prudent man in like position to have acted effectively." Battle v. Chavis, 266 N.C. 778 , 781, 147 S.E.2d 387 , 390 (1966).

2022App. 678, 684-85 , 262 S.E.2d 307, 311 (1980) (“[W]here there is no evidence that [a] defendant failed to keep a reasonable lookout in the direction of travel or that a person exercising a proper lookout would have been able in the exercise of reasonable care to avoid the collision, the last clear chance doctrine does not apply.” (citations omitted)).

2022App. 678, 684-85 , 262 S.E.2d 307, 311 (1980) (“[W]here there is no evidence that [a] defendant failed to keep a reasonable lookout in the direction of travel or that a person exercising a proper lookout would have been able in the exercise of reasonable care to avoid the collision, the last clear chance doctrine does not apply.” (citations omitted)).

2013The doctrine of last clear chance “is a plea in avoidance to the affirmative defense of contributory negligence[.]” Vernon v. Crist, 291 N.C. 646, 650 , 231 S.E.2d 591, 593 (1977).

2013The doctrine of last clear chance “is a plea in avoidance to the affirmative defense of contributory negligence[.]” Vernon v. Crist, 291 N.C. 646, 650 , 231 S.E.2d 591, 593 (1977).

1994See Earle v. Wyrick, 286 N.C. 175, 178 , 209 S.E.2d 469, 471 (1974) (holding that plaintiff's estate was entitled to a last clear chance instruction where defendant stated that she saw decedent "only a split second before the impact" and where "[a]ll the evidence indicate[d] the defendant failed to sound the horn"); Vernon v. Crist, 291 N.C. 646, 655 , 231 S.E.2d 591, 596-97 (1977) (holding that plaintiff was entitled to a last clear chance jury instruction based upon defendant's knowledge of plaintiff's presence and defendant's failure to warn plaintiff).

1994See Earle v. Wyrick, 286 N.C. 175, 178 , 209 S.E.2d 469, 471 (1974) (holding that plaintiff's estate was entitled to a last clear chance instruction where defendant stated that she saw decedent "only a split second before the impact" and where "[a]ll the evidence indicate[d] the defendant failed to sound the horn"); Vernon v. Crist, 291 N.C. 646, 655 , 231 S.E.2d 591, 596-97 (1977) (holding that plaintiff was entitled to a last clear chance jury instruction based upon defendant's knowledge of plaintiff's presence and defendant's failure to warn plaintiff).

1994See also Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 448 , 35 S.E.2d 337, 340 (1945) (doctrine of last clear chance is "invoked only in the event it is made to appear that there was an appreciable interval of time between plaintiff's negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff's prior negligence"); Mathis v. Marlow, 261 N.C. 636, 639 , 135 S.E.2d 633, 635 (1964).

1994See also Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 448 , 35 S.E.2d 337, 340 (1945) (doctrine of last clear chance is "invoked only in the event it is made to appear that there was an appreciable interval of time between plaintiff's negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff's prior negligence"); Mathis v. Marlow, 261 N.C. 636, 639 , 135 S.E.2d 633, 635 (1964).

2014Further, whatever opportunity Defendant had to avoid the accident, -9- if any, was minimized by Plaintiff’s inconspicuous attire, which Trooper Kirkpatrick described as “black clothing” with “nothing . . . that reflected . .. whatsoever.”1 We conclude that these circumstances distinguish the present case from cases in which a last clear chance instruction was proper due to the defendant’s ability to avoid the accident at the last moment, e.g., Vancamp, 328 N.C. at 500 , 402 S.E.2d at 377-78 (holding that a last clear chance instruction was warranted where the evidence indicated that plaintiff

2014Further, whatever opportunity Defendant had to avoid the accident, -9- if any, was minimized by Plaintiff’s inconspicuous attire, which Trooper Kirkpatrick described as “black clothing” with “nothing . . . that reflected . .. whatsoever.”1 We conclude that these circumstances distinguish the present case from cases in which a last clear chance instruction was proper due to the defendant’s ability to avoid the accident at the last moment, e.g., Vancamp, 328 N.C. at 500 , 402 S.E.2d at 377-78 (holding that a last clear chance instruction was warranted where the evidence indicated that plaintiff

2024The last clear chance doctrine “allows a contributorily negligent plaintiff to recover where the defendant’s negligence in failing to avoid the accident introduces a new element into the case, which intervenes between the plaintiff’s negligence and the injury and becomes the direct and proximate cause of the accident.” Outlaw v. Johnson, 190 N.C.

2016The last clear chance doctrine "allows a contributorily negligent plaintiff to recover where the defendant's negligence in failing to avoid the accident introduces a new element into the case, which intervenes between the plaintiff's negligence and the injury and becomes the direct and proximate cause of the accident." Outlaw v. Johnson, 190 N.C.App. 233 , 238, 660 S.E.2d 550 , 556 (2008) (citation and quotation marks omitted).

2014Further, whatever opportunity Defendant had to avoid the accident, -9- if any, was minimized by Plaintiff’s inconspicuous attire, which Trooper Kirkpatrick described as “black clothing” with “nothing . . . that reflected . .. whatsoever.”1 We conclude that these circumstances distinguish the present case from cases in which a last clear chance instruction was proper due to the defendant’s ability to avoid the accident at the last moment, e.g., Vancamp, 328 N.C. at 500 , 402 S.E.2d at 377-78 (holding that a last clear chance instruction was warranted where the evidence indicated that plaintiff

2004We have held the following regarding the application of the last clear chance doctrine: "The issue of last clear chance, `must be submitted to the jury [only] if the evidence, when viewed in the light most favorable to the plaintiff, will support a reasonable inference of each essential element of the doctrine." Culler v. Hamlett, 148 N.C.

2014Further, whatever opportunity Defendant had to avoid the accident, -9- if any, was minimized by Plaintiff’s inconspicuous attire, which Trooper Kirkpatrick described as “black clothing” with “nothing . . . that reflected . .. whatsoever.”1 We conclude that these circumstances distinguish the present case from cases in which a last clear chance instruction was proper due to the defendant’s ability to avoid the accident at the last moment, e.g., Vancamp, 328 N.C. at 500 , 402 S.E.2d at 377-78 (holding that a last clear chance instruction was warranted where the evidence indicated that plaintiff

2014Further, whatever opportunity Defendant had to avoid the accident, -9- if any, was minimized by Plaintiff’s inconspicuous attire, which Trooper Kirkpatrick described as “black clothing” with “nothing . . . that reflected . .. whatsoever.”1 We conclude that these circumstances distinguish the present case from cases in which a last clear chance instruction was proper due to the defendant’s ability to avoid the accident at the last moment, e.g., Vancamp, 328 N.C. at 500 , 402 S.E.2d at 377-78 (holding that a last clear chance instruction was warranted where the evidence indicated that plaintiff

2017App. 242 , 249, 254 S.E.2d 665 , 670 (1979) (emphasis added); see also Exum v. Boyles , 272 N.C. 567 , 577, 158 S.E.2d 845 , 854 (1968) (noting that "to invoke the doctrine of the last clear chance[,] the plaintiff must plead it and the burden of proof is upon him." (citations omitted)).

1994App. 242, 249 , 254 S.E.2d 665, 670 (1979), our Court stated “[i]n order for the last clear chance doctrine to apply, there must be evidence that a reasonable person under the conditions existing had the time and means to avoid injury to the imperiled person[.]” We find plaintiff herein presented such evidence in the form of Mr. Jackman’s testimony.

1980This case should be distinguished from Cockrell v. Transport Co., 295 N.C. 444 , 245 S.E. 2d 497 (1978), where the trial court erroneously refused to instruct on the doctrine of last clear chance.

1980This case should be distinguished from Cockrell v. Transport Co., 295 N.C. 444 , 245 S.E. 2d 497 (1978), where the trial court erroneously refused to instruct on the doctrine of last clear chance.

2024It allows a contributorily negligent plaintiff to recover when “the conduct of [the] defendant[,] after his negligence and the plaintiff’s contributory negligence have had their play, still leav[es] the defendant time and opportunity to avoid the injury notwithstanding what both parties have previously done, or failed to do.” McMillan v. Horne, 259 N.C. 159, 160 (1963). -7- CULLEN V.

1976McMillan v. Horne, 259 N.C. 159 , 130 S.E. 2d 52 (1963).