See If You Can Answer This MBE Question!

A teen driving his car negligently is thrown onto the oncoming traffic lane as a truck is approaching. The truck driver sees the teen’s car a few seconds prior to collision. The truck driver tries to stop but is unable to do so because the brakes are defective and he crashes into the teen’s car. The truck driver failed to have his breaks repaired despite a warning from a mechanic that the brakes were faulty. The crash occurred in a contributory negligence jurisdiction. In a lawsuit by the teen against the truck driver, the truck driver raises the teen’s negligence as a defense. Will the teen prevail?


(A) Yes, because the truck driver acted negligently by not repairing his brakes.

(B) Yes, because the truck driver is the proximate and actual cause of the teen’s injuries.

(C) No, because the teen was driving negligently and the truck driver acted reasonably by trying to stop.

(D) No, because it is impossible to determine who was at fault.


(C) is correct.

Issue: Whether the last clear chance doctrine rebuts the defense that plaintiff was negligent.

Rule: The doctrine of “last clear chance” is an exception to contributory negligence and allows a plaintiff to recover despite his own contributory negligence. If the defendant’s negligent act(s)  occurred after the plaintiff’s negligent act(s) – i.e., if the defendant had the last chance to avoid the  accident – then the plaintiff can still recover in tort despite his own negligence. Remember that in a contributory negligence jurisdiction, the plaintiff cannot recover if he was in any par negligent; this is different from a comparative negligence jurisdiction where a plaintiff can still recover despite his own negligence. In a comparative negligence jurisdiction (which  is  the default  MBE  rule), the last clear chance doctrine is another factor to consider in apportioning damages.

The  elements  of  the  last  clear  chance  doctrine  are:  (1)  The  plaintiff  is  in  a  perilous  position  because of  his  own  negligence;  (2)  The  defendant  knows  of  the  plaintiff’s  perilous  position;  (3)  The defendant knew of the peril in sufficient time to prevent the injury by using reasonable care; and  (4)  The  defendant  failed  to  exercise  reasonable  care  to  avert  the  injury.  Importantly, the  defendant’s  negligence  must  occur  subsequent  to  that  point  in  time  when  the  defendant discovered or should have discovered the plaintiff’s peril.

Analysis: Here, the teen was negligent and the truck driver asserted this as a defense –because this is a contributory negligence jurisdiction, the teen’s negligence would bar him from recovery unless the teen can establish that the truck driver had the last clear chance to avoid the accident.

(Note  that  the  default  rule  on  the  MBE  is  pure  comparative  negligence,  unless,  as  is  the  case  here,  the  questions  states  otherwise). Applying  the elements: (1)  the  plaintiff  was  in  a  perilous position  due  to  his  own  negligence and (2)  the  defendant knew the plaintiff  was in a perilous position. However, elements (3) and (4) are not satisfied. The truck driver acted reasonably in that moment by trying to stop.  Do not be distracted by the truck driver’s previous negligence in not repairing the brakes. The teen driver is still liable because the truck driver’s previous negligence—failing to inspect his brakes—is irrelevant as to whether he had the “last  clear chance”  to  avoid  this  collision  and  acted  reasonably  in  that  moment  to  do  so. The  defendant’s  negligence  must  occur  after plaintiff’s  negligence in order for the last clear  chance doctrine to apply.

(C) is correct because the teen will not be able to rebut the truck driver’s defense of the teen’s contributory  negligence  using  the  last  clear  chance  doctrine  since  the  truck  driver  acted reasonably  in  trying  to  avoid  the  accident  and  the  truck  driver’s  previous  negligence  in  not repairing the brakes is not relevant.

(A) is incorrect because the truck driver’s negligence preceded the teen’s negligence and is not relevant to the last clear chance doctrine. The last clear chance doctrine looks at whether the  defendant acted  reasonably  in  that  moment  when  he  had  the  chance  to  stop  the  accident  after plaintiff’s negligence.

(B) is incorrect because even if the  truck  driver  is  the  actual  and  proximate cause, he did not act unreasonably in the moment when he could have stopped the accident.  Furthermore, unless plaintiff  can  satisfy  the  elements  of  the  last  clear  chance  doctrine,  his  own  negligence  bars  recovery in a contributory negligence jurisdiction.

(D) is incorrect because under the facts here, it is completely possible to determine who is at fault – the facts state unequivocally that plaintiff acted negligently. The issue is whether the last clear chance doctrine can be applied to save plaintiff’s case; it cannot and thus plaintiff will not prevail.

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