Even if Plaintiff Is Negligent, Defendant May Still Be Liable in North Carolina If the Accident Could Have Been Avoided

It seems axiomatic that if one car hits another, the first car is responsible for the collision.

It isn’t always that simple. In North Carolina, if the plaintiff driver brought the collision on himself or herself by his or her own action or inaction, the defendant may escape liability because of the plaintiff’s contributory negligence. Where the evidence before the court could support a jury finding of contributory negligence by a plaintiff, the trial judge will give the appropriate jury instruction to advise the jury what factors are proper for them to consider before reaching their verdict.

The defendant is not completely in the clear, though, even if the evidence supports a finding that a plaintiff has been contributorily negligent.

If the defendant had the last clear chance to avoid the collision, the liability may shift back to the defendant.

There are five elements of the last clear chance doctrine:

1. The plaintiff put himself or herself in danger;
2. The defendant knew or should have known the plaintiff’s situation;
3. The defendant could have avoided the injury;
4. The defendant negligently failed to do what he or she could to avoid injuring the plaintiff; and
5. The plaintiff was injured as a result.

If the evidence could support such a finding, = the judge at trial must instruct the jury on the doctrine of the last clear chance and allow them to decide if the defendant is ultimately liable after all, even if the plaintiff is contributorily negligent.

An accident that brought these two issues into court happened one afternoon in June 2008. The plaintiff was driving her red 1997 Pontiac west along Woods Crossroads Road, near Benson. She testified at trial that she was driving at 45 miles per hour. A witness who was driving in the opposite direction down Woods Crossroads estimated her speed at 55-65 miles per hour. The speed limit on that part of Woods Crossroads was 55 miles per hour.

The defendant, driving her 1997 Chevrolet pickup truck, pulled up to the stop sign at the intersection of Woods Crossroads and Beasley Road, heading south. The defendant testified that as she pulled into the intersection she saw the plaintiff’s car as a red dot in the distance. A witness who had pulled up behind the defendant at the intersection while she was still stopped at the stop sign said that she herself saw the plaintiff’s car on the left before the defendant pulled her truck into the intersection. The defendant agreed that she saw the plaintiff once she was in the intersection and decided to accelerate to try to avoid a collision.

The plaintiff testified that, although she saw the defendant at the stop sign, she didn’t see the defendant move into the intersection. The, the defendant “darted out” in front of her so quickly she didn’t have time to stop and hit the back end of the defendant’s truck.

The plaintiff filed her complaint in Johnson County in March 2011, alleging that the defendant negligently drove her truck into her path, causing her to collide with it. The case went to jury trial in December 2012.

Th plaintiff, at the conference with the judge before trial, did not request a jury instruction on last clear chance, but she brought it up the morning of the trial, before the judge instructed the jury. The judge denied her request, instructing the jury only on negligence and contributory negligence.

The jury deliberated and returned a verdict in which it found that the defendant had negligently caused the collision, but that the plaintiff was also negligent, and that her negligence contributed to her injury. The jury awarded the plaintiff nothing. The trial court entered judgment, and the plaintiff appealed.

The Court of Appeals of North Carolina, in the case of Gloria Poole Jernigan v. Carmen Bryant Tart, COA13-919, in a decision issued March 18, 2014, found that a reasonable jury could infer from the available evidence that the defendant’s conduct implied all five elements of the last clear chance doctrine:

• The plaintiff was speeding, according to witnesses, and couldn’t brake in time to avoid hitting the defendant’s truck when she “darted out” in front of the plaintiff;
• According to the driver stopped behind her, the defendant saw, or should have seen, the plaintiff;
• The defendant could have avoided the accident by remaining stopped at the stop sign;
• Despite her ability to avoid the accident, the defendant pulled forward anyway, and the plaintiff hit her truck;
• The plaintiff was injured as a result of the collision.

For all these reasons, the Court of Appeals concluded that the trial judge should have instructed the jury on the last clear chance doctrine, after which the jury could have found the defendant liable and rendered a verdict for the plaintiff.

The failure to give the instruction constituted reversible error, and the Court remanded the case for a new trial.

Liability for an accident is not always obvious. If you or someone you know has been injured due to the negligence of another, contact an experienced personal injury attorney from the Tatum Law Firm today for a free consultation.