Last Clear Chance - Observant Defendant

The observant defendant is one who actually sees the plaintiff in time to act so as to avoid the harm and assumes that a duty exists to act under the circumstances. The person perceives the plaintiff's helpless or inattentive condition, but thereafter is negligent in failing to act so as to prevent the plaintiff's harm. In most instances, the defendant's conduct is itself the cause of the plaintiff's danger, but this is not a requirement so long as a duty to act exists.

The plaintiff must prove that the defendant actually saw him or her and that a reasonable person would have known that he or she was inattentive or helpless. This is determined by an objective test entailing circumstantial evidence of the defendant's state of mind. The defendant cannot assert unawareness of the plaintiff's powerlessness or inattentiveness when that fact would have been evident to any observer.