John M. Kirby
Burgess v. Dorton
In Burgess v. Dorton the Court of Appeals (on 1/7/2014; unpublished) addressed a case involving the application of "last clear chance." In this case, the plaintiff was riding a bicycle on a highway. The testimony was a little unclear as to the lighting conditions, but it appears that it was getting dark (between 6:00 p.m. and 7:00 p.m. on 11/6/2010). The defendant was traveling in the opposite direction, turned into a driveway, and the behicle and bicycle collided. The plaintiff alleged that he had white on his shirt, and had reflective pants. Other witnesses testified that he was not wearing reflective clothing. Neither operator saw the other until right before or at the time of impact. The jury found both parties negligent. The plaintiff's request for an instruction on "last clear chance" was denied by the trial court. On appeal, the court affirmed, finding that the defendant did not have the time and means to avoid the accident. (The court seems to have largely discounted the plaintiff's testimony regarding wearing reflective pants, which is odd because the credibility ofhis testimony would normally be for the jury to weigh).
John Kirby has handled hundreds of cases involving negligence, contributory negligence, and last clear chance, and has lectured on these issues.