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This Post Is Not about Toyotas, It?s About the Last Clear Chance Doctrine

By Steve Lombardi

The motoring traffic ought to forget about sticking Toyota accelerators for awhile and think about that cell phone that is stuck to the driver's ear. That cell phone is more dangerous to most of us than any Toyota.

I'm on my way to work this morning and as I approach an intersection I'm on a downward slope. It's my duty to stop at this particular intersection because my road ends and I've got to turn right or left. To my right a black SUV approaches. The driver appears to be a mother taking her children to school. I'm driving slow because there is fresh snow dusting the roadway and I know this particular intersection has a lot of ice under the snow. My vehicle is a Ford F-350 with a plow on the front of it and that means if I'm in an accident the other guy is likely to be the worse off.

As you read this blog post why don't you play the soundtrack from Forest Gump. It seems appropriate to me since Forrest's mother's advice was based solely on common sense; which is what today discussion is is really about. Hit the play button and then continue with your reading.

http://www.youtube.com/watch?v=2GFgwJiWaJE

So here comes someone's mommy from my right. She's oblivious to my truck because in her right hand she holds a cell phone and from the bobbing and weaving of her head I can tell she's into a very 'important conversation' with probably some other mother. Her head is flipping side to side; she's smiling and seems to really be enjoying the conversation. She's really into it I guess you could say. But what she's not into is her driving and being aware of her surroundings; especially this rather large heavy black pickup truck that is lumbering towards the intersection and may very well slide right through the intersection and into the path of her shiny new SUV. Oblivious is a good term because her head never even turns to look to see if the intersection is clear. And that is today's point to ponder. What is the doctrine of the last clear chance and is it really just about common sense?

The last clear chance has nothing to do with dating, bars, closing time or gambling. It has to do with car accidents and the determination of fault or negligence. Clear as a bell right? Ha-ha, I didn't think so, but I'll try to make this clear for non-lawyers. The last clear chance seems to me to make sense in this instance. This lady, had she been doing what she was supposed to be doing, which is looking and assessing the road conditions as she drives, can avoid a collision but won't because she's simply not paying attention to her driving. Instead she's paying attention to her conversation on a cell phone. And shouldn't that make her at fault for not stopping and avoiding a collision? In other words she has the last clear chance to avoid a collision but through her own fault doesn't avoid it, but drives right into it.

Even though the Iowa Supreme Court abolished the last clear chance doctrine as a separate jury instruction, I believe it's still a part of the issue of proximate cause and is alive and well in the minds of jurors. Take a look at the legal definitions below and see if you don't think people with common sense would say you're at least partially at-fault and maybe 100% at-fault if you could avoid a collision but don't because you're yakking on a cell phone and not paying attention to the road. Keep in mind that a car sliding on ice is obvious because the wheels are locked and not rotating as the truck advances down the hill. If the lady wasn't yakking on her phone she would see this, apply her brakes and the sliding truck would simply slide into the intersection and come to a stop without ever hitting anything. It is her last clear chance for a collision to be avoided.

Before we get to the last clear chance let's define a proper lookout because the last clear chance is based on this concept. Here is the legal definition used by many Iowa Courts. The definition of proper lookout, negligence and the rest of these quotes are from the case of Sonnek vs Warren, 522 N.W.2d 45 (Iowa 1994). I've added the underlining.

"Proper lookout" is the lookout a reasonable person would keep in the same or similar situation. It means more than looking and seeing. It includes being aware of the operation of the driver's vehicle in relation to what the driver saw or should have seen.

A violation of this law is negligence.

And let's also look at the definition of 'negligence'.

"Negligence" means failure to use ordinary care. Ordinary care is the care which a reasonably careful person would use under similar circumstances. "Negligence" is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances.

Road conditions may be such that speed should be less than the legal limit. Traffic laws call for the minimum of care and not the maximum. A driver should not operate a vehicle up to the legal speed limit of ___ miles per hour if the circumstances are such that ordinary care requires a lesser speed. A violation of this law is negligence.

….

In defining "proper lookout," we said in Coker, 491 N.W.2d at 151, "Maintaining a proper lookout encompasses the duty to be careful of the movements of one's self in relation to things seen and that could have been discerned or seen in the exercise of due care." In Diehl v. Diehl, 421 N.W.2d 884, 887 (Iowa 1988), we described it as follows:

The duty to maintain a proper lookout includes being watchful of the movements of one's own vehicle as well as other things seen or seeable.

....

The common-law duty of control requires the operator of a motor vehicle to proceed with such care and with the vehicle under such control as existing conditions known or which should be known may require.

….

With our adoption of comparative negligence in Goetzman v. Wichern, 327 N.W.2d 742, 744 (Iowa 1982), and the subsequent modified codification of that doctrine by our legislature in 1984, the doctrine of last clear chance was abolished from Iowa jurisprudence. In Bokhoven v. Klinker, 474 N.W.2d 553, 556-57 (Iowa 1991), we held "the doctrine of last clear chance, even when considered a part of proximate cause, has no further function to perform where contributory negligence is no longer a complete bar to plaintiff's recovery." The doctrine's chief purpose was to ameliorate the harsh effects of the doctrine of contributory negligence. Id. at 556; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 66, at 464 (5th ed. 1984).

Even thought the Iowa Supreme Court held the last clear chance doctrine was eliminated as a separate instruction with the adoption of comparative fault, a weighing of what each driver did and didn't do must be considered in determining who was negligent. So if that lady driving and cell phoning isn't looking at what is clearly and obviously in her view isn't she comparatively negligent? I think so. In this instance if we'd crashed, we didn't, I would have asked her for her cell phone number and told her right there that had she not been distracted with her cell phone conversation there would not have been a collision. Common sense tells us you can't see what you're not looking for. You can't see when you're not looking. Another day I'm going to cover why that left arm to your head makes it reasonably likely some day you're going to crash.

I rest my case.

If you have any questions about this blog or any other feel free to call the author at the Lombardi Law Firm, West Des Moines, Iowa. 515-222-1110 or write to sdlombardi@aol.com. Enjoy your day and stay safe.

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on February 09, 2010 (boomark / email).