Last Clear Chance

In another group of cases, the plaintiff is not helpless but is in a position to escape injury. The person's negligence consists of failure to pay attention to his or her surroundings and detect his or her own peril. If the defendant discovers the plaintiff's danger and inattentiveness, and is then negligent, a majority of courts allows the plaintiff to recover. Some courts hold that the defendant must actually recognize the plaintiff's danger and inattention. Most courts apply a more objective standard; they require only that the defendant discover the situation and that the plaintiff's peril and inattentiveness be evident to a reasonable person. The discovery can be proved by CIRCUMSTANTIAL EVIDENCE. There is an additional essential qualification that the defendant can frequently, reasonably assume until the last moment that the plaintiff will protect himself or herself, and the defendant has no reason to act until he or she has some notice to the contrary.

If the defendant does not discover the plaintiff's situation—but could do so with appropriate vigilance—neither party can be viewed as possessing the last clear chance. The plaintiff is still in a position to escape, and his or her inattentiveness persists until the juncture of the accident, without the interval of superior opportunity of the defendant. The plaintiff cannot reasonably demand of the defendant greater care for his or her own protection than that which he or she as plaintiff would exercise for himself or herself. Nearly all of the courts have ruled that, in this situation, there can be no recovery.