last clear chance doctrine in Florida

1965It was held in Parker v. Perfection Cooperative Dairies, Fla.App.1958, 102 So. 2d 645 , that the elements under which the doctrine of last clear chance would apply are as follows: * # * * ' * * “ ‘(1) That the injured party has already come into a position of peril; (2) that the injuring party then or thereafter becomes, or in the exercise of ordinary prudence ought to have become, aware not only of that fact, but also that the party in peril either reasonably cannot escape from it, or apparently will not avail himself of opportunities open to him for doing so; (3) that the injuring party subs

1961In the recent ease of Parker v. Perfection Cooperative Dairies, 1958, 102 So. 2d, 645, 647 , the Second District Court of Appeal in discussing the doctrine of the last clear chance, laid down the following conditions under which the doctrine applies — “(1) That the injured party has already come into a position of peril; (2) That the injuring party then or thereafter becomes, or in the exercise of ordinary prudence ought to have become, aware not only of that fact, but also that the party in peril either reasonably cannot escape from it, or apparently will not avail himself of the opportunitie

1972In Connolly v. Steakly, Fla.1967, 197 So.2d 524 , Justice O’Connell, specially concurring, gives an exhaustive examination of the doctrine of last clear chance.

1970We conclude that under the facts of this case and on the authority of Perdue v. Copeland, Fla.1969, 220 So.2d 617 ; Morse Auto Rentals, Inc. v. Kravitz, Fla.1967, 197 So.2d 817 ; and Connolly v. Steakley, Fla.1967, 197 So.2d 524 , the court properly declined to give an instruction to the jury upon the doctrine of last clear chance.

1967Furthermore, the Supreme Court held in Falnes v. Kaplan, 101 So.2d 377 (1958) that a charge on the last clear chance doctrine is not “a stereotyped or conventional one to be given generally in actions arising from the operation of automobiles.” As this opinion is written, the latest expression of the Florida Supreme Court on the subject of giving jury instructions on the doctrine of last clear chance is in Bethel Apostolic Temple v. Wiggen, 200 So.2d 797 , opinion filed on July 5, 1967.

1967Furthermore, the Supreme Court held in Falnes v. Kaplan, 101 So.2d 377 (1958) that a charge on the last clear chance doctrine is not “a stereotyped or conventional one to be given generally in actions arising from the operation of automobiles.” As this opinion is written, the latest expression of the Florida Supreme Court on the subject of giving jury instructions on the doctrine of last clear chance is in Bethel Apostolic Temple v. Wiggen, 200 So.2d 797 , opinion filed on July 5, 1967.

1967Yousko v. Vogt, Fla. 1953, 63 So.2d 193 ." [Emphasis added] The District Court in the case sub judice based its holding that it was not error to deny the plaintiff's requested charge on the last clear chance rule upon Yousko v. Vogt, Fla., 1953, 63 So.2d 193 .

1967Yousko v. Vogt, Fla. 1953, 63 So.2d 193 ." [Emphasis added] The District Court in the case sub judice based its holding that it was not error to deny the plaintiff's requested charge on the last clear chance rule upon Yousko v. Vogt, Fla., 1953, 63 So.2d 193 .

1968In Radtke v. Loud, Fla.App.1957, 98 So.2d 891, 894 , the Third District Court of Appeal held: “Where findings of fact compatible with the doctrine of last clear chance are within the range of those permissible to be made by the jury on the evidence, the court’s charge should explain the doctrine and authorize its consideration and application by the jury dependent upon their findings establishing applicability.” It is our view of this record that the jury could have properly made findings of fact entirely compatible with the last clear chance doctrine.

1961Falnes v. Kaplan, supra; Rosenfeld v. Knowlton, Fla.App., 110 So.2d 90 ; Radtke v. Loud, Fla.App., 98 So.2d 891 ; Lee County Oil Company v. Marshall, Fla.App., 98 So.2d 510 ; Gordon v. Cozart, Fla.App., 110 So.2d 75 ; Yousko v. Vogt, supra. Proceeding to the instant situation we must decide whether the record before the trial judge supported the plaintiffs' requested charge on the doctrine of last clear chance.

1968For instance, in Lee County Oil Co. v. Marshall, 98 So.2d 510 (Fla.App.1957), we held that one of the conditions for the application of the said doctrine is that the injuring party was aware of the position of peril in which the injured party had placed himself and that the injuring party had sufficient time and means by the exercise of reasonable care to have avoided the ensuing injury. * * jfi ff One of the latest expressions of the Florida Supreme Court on the subject of giving of jury instructions on the doctrine of last clear chance was in Bethel Apostolic Temple v. Wiggen, 200 So.2d 797

1961Falnes v. Kaplan, supra; Rosenfeld v. Knowlton, Fla.App., 110 So.2d 90 ; Radtke v. Loud, Fla.App., 98 So.2d 891 ; Lee County Oil Company v. Marshall, Fla.App., 98 So.2d 510 ; Gordon v. Cozart, Fla.App., 110 So.2d 75 ; Yousko v. Vogt, supra. Proceeding to the instant situation we must decide whether the record before the trial judge supported the plaintiffs' requested charge on the doctrine of last clear chance.

1969Merchants' Transportation Co. v. Daniel, 109 Fla. 496 , 149 So. 401 ; Dunn Bus Service, Inc. v. McKinley, 130 Fla. 778 , 178 So. 865 ." Under these facts I think the District Court reached a conclusion entirely consistent with the former decisions of this Court.

1969Merchants' Transportation Co. v. Daniel, 109 Fla. 496 , 149 So. 401 ; Dunn Bus Service, Inc. v. McKinley, 130 Fla. 778 , 178 So. 865 ." Under these facts I think the District Court reached a conclusion entirely consistent with the former decisions of this Court.

1968Co. v. Daniel, 1933, 109 Fla. 496, 503 , 149 So. 401, 403 ; Connolly v. Steakley, Fla.App.1964, 165 So.2d 784, 786 , cert. discharged, Fla.1967, 197 So.2d 524 (containing an exhaustive and scholarly survey of the last clear chance doctrine in Florida by Justice O’Connell in a concurring opinion).

1967In Connolly v. Steakley, 165 So.2d 784 (Fla.App.2d 1964), the District Court held the last clear chance doctrine was inapplicable because there was no evidence that the defendant could or should have seen the plaintiff there in time to avoid the accident.

1961With these factors in mind we again refer to Wawner v. Sellic Stone Studio, supra, wherein the Court stated in regard to "concurrent negligence" as follows: "* * * [W]here a person has negligently placed himself in a dangerous situation upon a highway and an approaching motorist `actually sees his situation and should appreciate his danger, the last clear chance rule applies without regard to the continuing negligence of the traveler concurring with that of the operator up to the very instant of the injury; * * *.' Merchants' Transport Co. v. Daniels [Daniel], 109 Fla. 496, 503 , 149 So. 401,

1956In Williams v. Sauls, 151 Fla. 270 , 9 So.2d 369, 371 , we reversed because of the failure of the trial court to charge the jury on the doctrine of the last clear chance.

1978Giving regard to the rule of comparative negligence [ Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)], two questions arise.

1974This case was tried prior to Hoffman v. Jones, Fla.1973, 280 So.2d 431 and was submitted to the jury with a contributory negligence charge.

1970We conclude that under the facts of this case and on the authority of Perdue v. Copeland, Fla.1969, 220 So.2d 617 ; Morse Auto Rentals, Inc. v. Kravitz, Fla.1967, 197 So.2d 817 ; and Connolly v. Steakley, Fla.1967, 197 So.2d 524 , the court properly declined to give an instruction to the jury upon the doctrine of last clear chance.

1969In Perdue v. Copeland, Fla.1969, 220 So.2d 617 , Justice Roberts set forth a thorough discussion of the history of the last clear chance doctrine, concluding the court’s holding in these words: “This court has said many times that the last clear chance doctrine is not to be given indiscriminately in negligence cases.

1969In holding that the last clear chance doctrine was not applicable, this court reiterated that "This doctrine is predicated upon the facts that defendant had knowledge of the situation in time to act upon it, and that the negligence of the person injured did not continue up to the very moment of the injury and was not a contributing and efficient cause of it." Again, in Davis v. Cuesta, 1941, 146 Fla. 471 , 1 So.2d 475 , this court emphasized the inapplicability of the doctrine in a case of concurrent negligence.

1969In holding that the last clear chance doctrine was not applicable, this court reiterated that "This doctrine is predicated upon the facts that defendant had knowledge of the situation in time to act upon it, and that the negligence of the person injured did not continue up to the very moment of the injury and was not a contributing and efficient cause of it." Again, in Davis v. Cuesta, 1941, 146 Fla. 471 , 1 So.2d 475 , this court emphasized the inapplicability of the doctrine in a case of concurrent negligence.

1969The appellate court was careful to point out that, if the evidence had shown that the plaintiff-pedestrian was in a position of conscious peril from which she could not extricate herself, the last clear chance instruction would have been proper, 121 So.2d at page 189 .

1963This instruction was refused by the trial judge in the case of James v. Keene, Fla.App.1960, 121 So.2d 186 , and, in affirming, the district court stated: “The requested instruction was patterned after the instruction approved by the court in Parker v. Perfection Cooperative Dairies, * * The district court’s opinion was grounded on the holding that the mutual inattentiveness of the parties produced an impasse resulting in concurrent negligence and thereby precluding application of the last clear chance doctrine.

1968It is by no means a routine judicial observation to be included perfunctorily in the jury instructions in negligence cases.” In the recent case of Wilder v. Van Dorn, 201 So.2d 775 (Fla.App.1967), we had occasion to discuss the elements that must be shown to exist before it becomes appropriate for the trial court to instruct the jury on the doctrine of the last clear chance.

1967In James v. Keene, Fla., 133 So.2d 297 (1961), the Supreme Court stated that to justify the giving of an instruction on the last clear chance doctrine, the following elements must be present: “(1) That the injured party has already come into a position of peril; (2) that the injuring party then or thereafter becomes, or in the exercise of ordinary prudence ought to have become, aware not only of that fact, but also that the party in peril either reasonably cannot escape from it, or apparently will not avail himself of opportunities open to him for doing so; (3) that the injuring party subseque

1967Another rule pertinent in the present consideration is the rule recognized by our District Court of Appeal, Second District of Florida, in Gordon v. Cozart, 110 So. 2d 75 (1959), that a trial court should be “extremely cautious” in granting a request for a charge on the last clear chance doctrine, and such a charge should not be given unless the evidence clearly demonstrates the applicability of the doctrine.

1961Falnes v. Kaplan, supra; Rosenfeld v. Knowlton, Fla.App., 110 So.2d 90 ; Radtke v. Loud, Fla.App., 98 So.2d 891 ; Lee County Oil Company v. Marshall, Fla.App., 98 So.2d 510 ; Gordon v. Cozart, Fla.App., 110 So.2d 75 ; Yousko v. Vogt, supra. Proceeding to the instant situation we must decide whether the record before the trial judge supported the plaintiffs' requested charge on the doctrine of last clear chance.

1966Plaintiffs’ requested instruction, taken verbatim from Lindsay v. Thomas, 1937, 128 Fla. 293 , 174 So. 418 , and set out verbatim in Holdsworth v. Crews, supra, is an adequate statement of the last clear chance doctrine.

1966Plaintiffs’ requested instruction, taken verbatim from Lindsay v. Thomas, 1937, 128 Fla. 293 , 174 So. 418 , and set out verbatim in Holdsworth v. Crews, supra, is an adequate statement of the last clear chance doctrine.

1961Falnes v. Kaplan, supra; Rosenfeld v. Knowlton, Fla.App., 110 So.2d 90 ; Radtke v. Loud, Fla.App., 98 So.2d 891 ; Lee County Oil Company v. Marshall, Fla.App., 98 So.2d 510 ; Gordon v. Cozart, Fla.App., 110 So.2d 75 ; Yousko v. Vogt, supra. Proceeding to the instant situation we must decide whether the record before the trial judge supported the plaintiffs' requested charge on the doctrine of last clear chance.

1961Radtke v. Loud, Fla.App. 1957, 98 So.2d 891 ; Rosenfeld v. Knowlton, Fla.App. 1959, 110 So.2d 90 ; Hodell v. Snyder, Fla.App. 1960, 122 So.2d 36, 37 .

1961With these factors in mind we again refer to Wawner v. Sellic Stone Studio, supra, wherein the Court stated in regard to "concurrent negligence" as follows: "* * * [W]here a person has negligently placed himself in a dangerous situation upon a highway and an approaching motorist `actually sees his situation and should appreciate his danger, the last clear chance rule applies without regard to the continuing negligence of the traveler concurring with that of the operator up to the very instant of the injury; * * *.' Merchants' Transport Co. v. Daniels [Daniel], 109 Fla. 496, 503 , 149 So. 401,

1956If he is to remain bound by the original wrong, then he is deprived entirely of the benefit of relief for defendant's wrongful act which may be the immediate cause of the injury." In Wawner v. Sellic Stone Studio, Fla., 74 So.2d 574 , we discussed this proposition at length, particularly as it related to the doctrine of the last clear chance.

1959See Merchant’s Transportation Co. v. Daniel, 109 Fla. 496 , 149 So. 401 ; Springer v. Morris, Fla.1954, 74 So.2d 781 .

1958For support of this position we are referred to our opinion in Merchants' Transportation Co. v. Daniel, 109 Fla. 496 , 149 So. 401, 403 , that when "the person in control of a motor vehicle, by keeping a reasonably careful lookout, commensurate with the dangerous character of the motor vehicle while in operation and the nature of the locality, could have discovered and appreciated another's perilous situation in time by the exercise of reasonable care to avoid injuring him, and the injury results from the failure to keep such lookout and to exercise such care, then the last clear chance rule a

1988Similarly, in the present case, because the state spoke at length during its initial closing argument regarding defendant's failure to withdraw from the charged conspiracies, defense counsel's reference to Hughes in his summation clearly did not exceed the scope of the prosecutor's arguments, in that such reference was relevant to the defense that he had in fact withdrawn from any such participation. [1] Although the trial court possesses wide discretion in controlling the arguments presented, see Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882 , 103 S.Ct. 184 , 74 L.Ed.2d 1

1988Similarly, in the present case, because the state spoke at length during its initial closing argument regarding defendant's failure to withdraw from the charged conspiracies, defense counsel's reference to Hughes in his summation clearly did not exceed the scope of the prosecutor's arguments, in that such reference was relevant to the defense that he had in fact withdrawn from any such participation. [1] Although the trial court possesses wide discretion in controlling the arguments presented, see Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882 , 103 S.Ct. 184 , 74 L.Ed.2d 1