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.