Jeffrey P. Gale, P.A. // The Last Clear Chance Doctrine in Florida Personal Injury Cases

city-zone-945513-mIn response to a Complaint we recently filed involving a serious crash on Florida’s Turnpike, the Defendant asserted as an affirmative defense that our client, the Plaintiff, should not recover because she had the “last clear chance” to avoid the accident.

In the many personal injury cases our firm has handled, this is the first time we have had this doctrine asserted. We had to do legal research to understand, what, if anything, it meant in our case. What we learned is that the doctrine has not been applicable in Florida personal injury cases since 1973. Moreover, when it did apply years ago it was always used by Plaintiffs against Defendants, not by Defendants against Plaintiffs. Hence, the affirmative defense in our case is hogwash.

Prior to the Florida Supreme Court’s holding in Hoffman v. Jones, 280 So.2d 431 (Fla., 1973), Florida was a contributory negligence jurisdiction. Hoffman turned Florida into a comparative negligence (or fault) jurisdiction.

Louisville and Nashville Railroad Co. v. Yniestra, 21 Fla. 700 (1886) established contributory negligence as the law in Florida. It was uniformly followed by the courts of the State until Hoffman. The rule provided that, notwithstanding a person being guilty of a negligent act from which injury results to another, if the party injured has by her own negligence contributed to her receiving the injury, she cannot recover damages from the other party for such injury. This means that a party at fault to any degree, even just 1%, is completely barred from recovering against anyone.

The rule not only barred injured parties from being compensated for losses, it allowed at-fault parties to walk away without suffering any consequences.

The courts were always skeptical of the contributory negligence rule. In Connolly v. Steakley, 197 So.2d 524, 537 (Fla. 1967), Mr. Justice O’Connell referred to contributory negligence as a “primitive device for achieving justice as between parties who are both at fault.” Even Mr. Chief Justice McWhorter, in authoring the decision which specifically held the contributory negligence doctrine to be the law of this State, referred to it as “unjust and inequitable.” Louisville and Nashville Railroad Co. v. Yniestra, supra, 21 Fla. p. 738.

Nevertheless, until Hoffman efforts to dislodge the rule as the law of the land failed. For example, the Florida Legislature addressed the problem in 1943, when a comparative negligence statute of general application was passed by both houses. Unfortunately, the bill was vetoed by the Governor and the Legislature would not override the veto.

This did not stop the courts from devising other tort law doctrines in an effort to ameliorate the harshness of contributory negligence such as “last clear chance,”  “gross, willful, and wanton” negligence, and the application of absolute liability in certain instances. These doctrines allowed a Plaintiff to recover damages even if partly at fault for his or her own injuries. However, their elements were often difficult to meet.

In Connolly, Justice O’Connell identified some of the universal, fixed factors in which the last clear chance doctrine was properly applied: (1) The plaintiff must have been guilty of negligence which placed him in a position of peril; (2) There must be something about the plaintiff’s situation that would serve to put the injuring party (the defendant) on notice of the fact that plaintiff is in peril; (3) The defendant must have been under a legal duty to notice and appreciate plaintiff’s peril and to avoid inflicting injury upon him; (4) The defendant must have had a capability, under existing circumstances, to avoid inflicting the injury; and (5) The defendant must have failed to take advantage of this opportunity, with resulting injury to the plaintiff.

While these factors can be relevant in a comparative fault analysis, they do not hold the make-or-break importance as under contributory fault. The difference is that “contributory negligence” completely bars, while the “comparative negligence” theory is that a plaintiff is prevented from recovering only that proportion of his damages for which he is responsible.

The Florida Legislature has gotten involved in delineating the application of comparative fault in tort law. The current comparative fault statute is 768.81. While this is the starting place for understanding the comparative fault law in Florida, case law provides the fine detail.


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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

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