John M. Kirby
Jernigan v. Tart; Last Clear Chance
In Jernigan v. Tart the Court of Appeals (on 3/18/2014; unpublished) held that the trial court erred in not submitting an instruction to the jury on last clear chance. In this case, the Plaintiff was on the dominant road traveling straight. There was some evidence that she was speeding. The Defendant had a stop sign, and was crossing in front of the Plaintiff’s path (exiting a street to the Plaintiff’s right). The Plaintiff did not have time to avoid the collision, and struck the Defendant’s car in the rear. A jury found that that both drivers ewre negligent. The Plaintiff had requested an instruction on last clear chance, which the judge denied. Pursuant to this doctrine, if the Plaintiff was in a position of peril and the Defendant could have avoided the collision, then the Plaintiff can still recover (even if she was negligent). The Court of Appeals ruled that the elements of this doctrine were supported in this case. Based on the Plaintiff’s speed, she could not have avoided the collision; and the Defendant could have seen the Plaintiff, and could have remained stopped. The Plaintiff was entitled to a new trial.
John Kirby has handled many cases involving negligence, contributory negligence, and last clear chance, and has written articles and taught courses on these doctrines in North Carolina.