Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
at fault is permitted to recover. It has been said that the rule is intended to
discourage accidents, by denying recovery to those who fail to use proper care for
their own safety; but the assumption that the speeding motorist is, or should be,
meditating on the possible failure of a lawsuit for his possible injuries lacks all
reality, and it is quite as reasonable to say that the rule promotes accidents by
encouraging the negligent defendant. Probably the true explanation lies merely in
the highly individualistic attitude of the common law of the early nineteenth
century. The period of development of contributory negligence was that of the
industrial revolution, and there is reason to think that the courts found in this
defense, along with the concepts of duty and proximate cause, a convenient
instrument of control over the jury, by which the liabilities of rapidly growing
industry were curbed and kept within bounds. . . .
No one ever has succeeded in justifying that as a policy, and no one ever will.
William L. Prosser, Comparative Negligence, 51 MICH. L. REV. 465, 468-9 (1953). Prosser’s
critique enjoyed wide acclaim in the following decades as state legislatures and state supreme
courts began softening and repealing their contributory negligence regimes, swapping them out
for various rules that allowed negligent plaintiffs to still recover some of their damages.
3. Doctrinal ameliorations I: last clear chance. The most notorious of these doctrines was
the so-called rule of “last clear chance.” The rule achieved a wide variety of forms but is perhaps
best summarized as follows: “When an accident happens through the combined negligence of two
persons, he alone is liable to the other who had the last opportunity of avoiding the accident by
reasonable care.” JOHN SALMOND, LAW OF TORTS 480 (8th ed. 1934). Last clear chance was thus
an opposite to the “she started it!” defense in childhood squabbles; it was a “she finished it!”
loophole to the harshness of contributory negligence regimes. As long as a negligent defendant
had the “last clear chance” to stop an accident, a negligent plaintiff could still recover her
damages from the defendant.
One difficulty was that, on a practical level, determining exactly who had possessed the
last chance was often a tricky question. Professor Fleming James—Yale’s great torts scholar of
the first half of the twentieth century—identified this problem nearly one hundred years ago:
[Last clear chance] is still a matter of carefully measuring times and distances in an
effort to find the last wrongdoer. The paths of a pedestrian and a street car cross at
an acute angle. The pedestrian is walking with his back partly towards the car
engrossed in thought; the motorman is counting his fares. Before either wakes to
the situation there is a collision. . . . [T]he pedestrian’s right to recover will depend
on whether, after he came into its path, the motorman could have stopped or slowed
the car or given warning in time to prevent the accident. This calls for a
determination of the relative speeds of the parties, the exact position of the car when
plaintiff reached the crucial point, and a measurement of the efficiency of the
available equipment.
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