Last Clear Chance

Where the plaintiff's previous negligence has placed him or her in a position from which the person is powerless to extricate himself or herself by the exercise of any ordinary care, and the defendant detects the danger while time remains to avoid it but fails to act, the courts have held that the plaintiff can recover.

There must be proof that the defendant discovered the situation, had the time to take action that would have saved the plaintiff, but failed to do what a reasonable person would have done. In the absence of any one of these elements, the courts deny recovery.

If the defendant who has a duty to discover the plaintiff's peril does not do so in time to avoid injury to the plaintiff, some courts have permitted recovery under the rationale that the defendant's subsequent negligence is the proximate cause, or direct cause, of the injury, rather than the contributory negligence of the plaintiff. The defendant must have been able to have discovered the peril through appropriate vigilance so as to avoid its harmful consequences to the plaintiff.