Also known as: supervening negligence doctrine · supervening negligence · last clear chance
Written by attorneys — see sources below.
An exception to the contributory negligence bar that permits a plaintiff to recover when the defendant's negligence occurs after the plaintiff's and supplies a final opportunity to avoid the harm.
Jenna's mechanic at Bridge Auto left her wheel lug nuts loose after a brake job. Jenna later struck a deep unrepaired pothole that other cars had crossed without incident. The wheel detached and caused her crash. Bridge Auto's earlier omission left Jenna vulnerable, yet the city's failure to fix the known hazard supplied the final opportunity to prevent injury after Jenna's own conduct.
Caleb deliberately drove across a posted hazardous area at Frontier Sustainability to save time. Site manager Nadine watched on live surveillance and had seconds plus a radio to warn him of the concealed soft spot ahead. Nadine chose not to act. Her later knowledge and means to intervene created the final opportunity to avoid harm after Caleb had already placed himself in danger.
On April 22, 1974, Glen Gregos, a teenage boy, was injured while participating in a cross-country motorcycle race for novices sponsored by the American Motorcycle Association and the Viking Motorcycle Club. Glen's second amended complaint alleged that the American Motorcycle Association and Viking negligently designed, managed, supervised, and administered the race and negligently solicited entrants. Such negligence was a direct and proximate cause of his injuries, including a crushed spine resulting in permanent loss of the use of his legs. Glen's parents, acting as guardians ad litem, filed the underlying action against the American Motorcycle Association, the Viking Motorcycle Club, and the Los Angeles Coliseum Commission. The American Motorcycle Association answered the complaint, denying the charging allegations and asserting affirmative defenses that included a claim that Glen's own negligence was a proximate cause of his injuries. Thereafter the American Motorcycle Association sought leave of court to file a cross-complaint against Glen's parents. The first cause of action alleged that the parents knew motorcycle racing is dangerous, were knowledgeable about Glen's training, directly participated in his decision to enter the race by signing a parental consent form, and negligently failed to exercise their power of supervision over their minor child. The second cause of action sought declaratory relief. It asked for a declaration of the allocable negligence of Glen's parents so that any damages awarded against the American Motorcycle Association could be reduced by the percentage allocable to the parents' negligence. The trial court denied the American Motorcycle Association's motion for leave to file the cross-complaint. The American Motorcycle Association petitioned the Court of Appeal for a writ of mandate to compel the trial court to grant the motion. The Court of Appeal issued an alternative writ. Ultimately the court granted a peremptory writ of mandate. Because of the statewide importance of the questions presented, the Supreme Court ordered a hearing in the case on its own motion.
View caseAshley entered a rotating turbine nacelle without the required lockout to meet inspection quotas. He slipped and became pinned with his legs in the rotor path. Monitor Andrew received repeated alerts and camera feeds but delayed shutdown to avoid output loss. Andrew's later access to real-time information supplied the final opportunity to stop the blades after Ashley's initial shortcut.
In the early hours of October 31, 1970, Kirk Daly, a 36-year-old attorney, was driving his Opel automobile southbound on the Harbor Freeway in Los Angeles at a speed of 50-70 miles per hour. The vehicle collided with and damaged 50 feet of metal divider fence. After the initial impact between the left side of the vehicle and the fence, the Opel spun counterclockwise. The driver's door was thrown open, and Daly was forcibly ejected from the car, sustaining fatal head injuries. It was undisputed that had the deceased remained in the Opel his injuries would in all probability have been relatively minor. There were no eyewitnesses to the accident. Plaintiffs, who are decedent's widow and three surviving minor children, sued General Motors Corporation, Boulevard Buick, Underwriter's Auto Leasing, and Alco Leasing Company. These defendants were the successive links in the Opel's manufacturing and distribution chain. The sole theory of plaintiffs' complaint was strict liability for damages allegedly caused by a defective product. The product was an improperly designed door latch claimed to have been activated by the impact. It was further asserted that but for the faulty latch decedent would have been restrained in the vehicle and although perhaps injured would not have been killed. At trial the jury heard conflicting expert versions as to the functioning of the latch mechanism during the accident. Plaintiffs' principal witness testified that the Opel's door was caused to open when the latch button on the exterior handle of the driver's door was forcibly depressed by some protruding portion of the divider fence. It was his opinion that the exposed push button constituted a design defect. Plaintiffs also introduced evidence that other vehicular door latch designs used in production models of the same and prior years afforded substantially greater protection. Defendants' experts countered with their opinions that the force of the impact was sufficiently strong that it would have caused the door to open, resulting in Daly's death even if the Opel had been equipped with door latches of the alternative designs suggested by plaintiffs. Over plaintiffs' objections, defendants were permitted to introduce evidence indicating that the Opel was equipped with a seat belt-shoulder harness system and a door lock, either of which if used would have prevented Daly's ejection from the vehicle. Daly used neither the harness system nor the lock. The 1970 Opel owner's manual contained warnings that seat belts should be worn and doors locked when the car was in motion for accident security. Daly was intoxicated at the time of collision. The evidence was admitted for the limited purpose of determining whether decedent had used the vehicle's safety equipment. After relatively brief deliberations the jury returned a verdict favoring all defendants. Plaintiffs appealed from the ensuing adverse judgment to the Supreme Court of California. They contended that the trial court erred in instructing the jury that plaintiffs' recovery could be barred or diminished by decedent's contributory negligence and in refusing to instruct on the theory of crashworthiness.
View caseBrian walked under an operating crane despite posted warnings requiring workers to stay clear. Operator Tammy saw him enter the swing radius but lacked time to halt the descending load. Brian's earlier decision to ignore the signs placed him in peril. Tammy's subsequent observation did not create a final opportunity to avoid the strike.
On May 22, 1990, at approximately 8:30 p.m., Sacramento County sheriff’s deputy James Everett Smith responded to a call to break up a fight along with another officer, Murray Stapp. Upon returning to his patrol car, Stapp saw a motorcycle operated by 18-year-old Brian Willard carrying 16-year-old Philip Lewis as a passenger approaching at high speed. Neither boy had been involved in the fight that prompted the call. Stapp turned on his overhead rotating lights, yelled to the boys to stop, and pulled his patrol car closer to Smith’s in an attempt to pen the motorcycle in. Instead of pulling over, Willard slowly maneuvered the motorcycle between the two police cars and sped off. Smith immediately switched on his own emergency lights and siren, made a quick turn, and began pursuit at high speed. For 75 seconds over a course of 1.3 miles in a residential neighborhood, the motorcycle wove in and out of oncoming traffic, forcing two cars and a bicycle to swerve off the road, while the vehicles reached speeds up to 100 miles per hour with Smith following at a distance as short as 100 feet. The chase ended after the motorcycle tipped over as Willard tried a sharp left turn. By the time Smith slammed on his brakes, Willard was out of the way, but Lewis was not. The patrol car skidded into him at 40 miles per hour, propelling him some 70 feet down the road and inflicting massive injuries from which Lewis was pronounced dead at the scene. The District Court granted summary judgment for Smith. It reasoned that he was entitled to qualified immunity. Respondents could point to no state or federal opinion published before May 1990 supporting their view of a Fourteenth Amendment substantive due process right in the context of high-speed police pursuits. The Court of Appeals for the Ninth Circuit reversed. It held that the appropriate degree of fault to be applied to high-speed police pursuits is deliberate indifference to or reckless disregard for a person’s right to life and personal security. The court concluded that the law regarding police liability for death or injury caused by an officer during the course of a high-speed chase was clearly established at the time of Philip Lewis’s death. The Supreme Court granted certiorari to resolve a conflict among the Circuits over the standard of culpability on the part of a law enforcement officer for violating substantive due process in a pursuit case.
View caseNo. The doctrine requires the defendant's negligence to occur after the plaintiff's and to supply a final opportunity to avoid harm. When the plaintiff's fault comes later or simultaneously, the contributory negligence bar remains in effect under the governing rule.
Supporting sources
The plaintiff must show that the defendant had actual knowledge or a superior opportunity to discover the peril immediately before the harm and failed to use reasonable care to avoid it. The plaintiff must also have been unable to avoid the harm through reasonable vigilance at that moment.
Supporting sources
The doctrine originated as an exception to the complete bar of contributory negligence. In comparative negligence jurisdictions the need for the exception diminishes because fault is apportioned rather than barring recovery entirely.
Supporting sources
No. The inquiry focuses on whether the plaintiff could avoid harm by reasonable vigilance immediately preceding the injury, not on earlier opportunities the plaintiff may have had.
Supporting sources
…least in part, for his own death. Was there contributory fault on the part of Willard or Lewis? Did the police officer have the "last clear chance" to avoid the accident? Did Willard and Lewis, by fleeing from the police, "assume the risk" of the accident? These are interesting questions of tort law, not of constitutional governance.…