THE STATE OF SOUTH CAROLINA
In The Supreme Court
John David Spahn, Petitioner,
Town of Port Royal, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Beaufort County
Jackson V. Gregory, Judge
Opinion No. 24772
Heard January 20, 1998 - Filed March 9, 1998
AFFIRMED AS MODIFIED
Daniel R. Denton, of Beaufort, for petitioner.
Charles E. Carpenter, Jr. and Nina Reid Mack,
both of Richardson, Plowden, Carpenter &
Robinson, P.A., of Columbia; and Robert W.
Achurch, III, of Howell, Gibson & Hughes,
of Beaufort, for respondent.
WALLER, A.J.: We granted certiorari to review the Court of
Appeals' opinion Spahn v. Town of Port Royal, Op. No. 2669 (S.C. Ct. App.
filed June 2, 1997). We affirm as modified.
This is a comparative negligence case arising out of an accident in
which the petitioner, John David Spahn, was injured when an automobile
driven by John H. Griffith, a police officer for the Town of Port Royal, struck
a jonboat Spahn was attempting to remove from the middle of the road. 1
Spahn and his brother were attempting to retrieve the boat, which had fallen
off the roof of Spahn's brother's automobile and landed partially in the road.
At trial, Spahn requested the jury be instructed on the law of "last clear
chance."2 The trial judge denied Spahn's request. The jury returned a
verdict for the defense.
The Court of Appeals affirmed holding, inter alia, that the doctrine of
last clear chance had been subsumed by adoption of comparative negligence.
The Court of Appeals also held that the factors previously considered in
determining last clear chance are inherent in comparative fault and remain
as factors to be considered by the jury in apportioning the parties' fault. We
granted certiorari and directed the parties to brief the issue of whether the
doctrine of last clear chance has been subsumed by adoption of comparative
There is a split of authority as to the continued viability of the last
clear chance doctrine after adoption of a comparative negligence scheme.3 As
noted by the Court of Appeals, a majority of jurisdictions4 hold the doctrine
2 Under the doctrine of last clear chance, a plaintiff who negligently
subjects himself to a risk of harm may recover when the defendant discovers
or could have discovered the plaintiff's peril had he exercised due diligence,
and thereafter fails to exercise reasonable care to avoid injuring the plaintiff.
Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991); Jones v.
Atlanta-Charlotte Air Line Ry. Co., 218 S.C. 537, 63 S.E.2d 476 (1951).
3 South Carolina adopted comparative negligence in Nelson v. Concrete
Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991).
4 See e.g., Kaatz v. State, 540 P.2d 1037 (Alaska 1975); Dykeman v.
Engelbrecht, 803 P.2d 119 (Ariz. 1990); Li v. Yellow Cab Co., 532 P.2d 1226
(Cal. 1975); Burns v. Ottati, 513 P.2d 469 (Col. 1973); Laws v. Webb. 658
A.2d 1000 (Del. 1995); Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); Rapoza
is subsumed by comparative negligence. Jurisdictions adopting this view
generally recognize last clear chance as an exception to contributory
negligence which provides a mechanism to avoid the harshness of a
contributory negligence defense.5 See Prosser and Keeton, Prosser and
Keeton on Torts, § 66 at pp. 462-463 (5th Ed. 1984) (hereafter Prosser and
Keeton); see also Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 472
(1953) (real explanation for doctrine would appear to be nothing more than
a dislike for the defense of contributory negligence, and a rebellion against
its application in a group of cases where its hardship is most apparent).
Under this view, last clear chance is viewed as a crude form of "comparative
negligence" such that in cases in which the defendant has the last clear
chance to avoid an injury, the plaintiff's negligence is treated comparatively.
See Hubbard and Felix, Comparative Negligence in South Carolina:
Implementing Nelson v. Concrete Supply Co., 43 S.C.L.R. 273, 284 (1992)
(hereafter Hubbard and Felix). Upon adoption of comparative negligence,
jurisdictions adhering to this view generally hold the doctrine of last clear
chance no longer survives as an independent "all or nothing" doctrine; rather,
the elements of last clear chance remain as factors for the jury's
consideration in weighing the parties' negligence. See Woods and Deere,
Comparative Fault, § 8.2 at pp. 172 (3rd Ed. 1996) (hereafter Woods and
Deere) (doctrine of last clear chance has crumbled under legislative acts and
judicial decisions adopting comparative negligence); Prosser and Keeton at §
67, n. 82-83 (listing states which abolish last clear chance as an independent
doctrine upon adoption of comparative negligence).
1981); Bokhoven v. Klinker, 474 N.W.2d 553 (Iowa 1991); Kennedy v.
Hageman, 704 S.W.2d 56 (Ky. Ct. App. 1985); Ogden v. Dalton, 501 So. 2d
1071 (La. App. 1987); Cushman v. Perkins, 245 A.2d 846 (Me. 1968); Petrove
v. Grand Trunk W. R.R. Co., 464 N.W.2d 711 (Mich. 1991); Davies v. Butler,
602 P.2d 605 (Nev. 1979); Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983);
McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992); French v. Grigsby, 571
S.W.2d 867 (Tex. 1978); Dixon v. Stewart, 658 P.2d 591 (Utah 1982);
Cunningham v. Western Liquid Propane Gas Services Inc., 693 P. 2d 123
(Wash. 1984); Ratlief v. Yokum, 280 S.E.2d 584 (W. Va. 1981); Britton v.
Hoyt, 218 N.W.2d 274 (Wis. 1974); Danculovich v. Brown, 593 P.2d 187 (Wyo.
1979); Conn. Gen. Stat. § 52-572h(b) (1995); Or. Rev. Stat. § 18.475(l) (1995).
5 Only one South Carolina case denominates last clear chance as an
"exception." That is the opinion of Judge Sanders in Langley v. Boyter, 284
S.C. 162, 325 S.E.2d 550 (Ct. App. 1984), which was quashed on procedural
grounds by this Court, 286 S.C. 85, 332 S.E.2d 100 (1985).
South Carolina has not followed the majority view of the doctrine of
last clear chance. On the contrary, we have historically treated the doctrine
not as an "exception," but as separate and distinct from contributory
negligence. See e.g., Smith v. Blackwell, 250 S.C. 170, 156 S.E.2d 867 (1967).
We have done so on the theory that the plaintiff's negligence has become
remote such that the defendant's negligence is the sole proximate cause of an
injury. See generally Hubbard and Felix, 43 S.C.L.R. at 284. Under this
view, antecedent negligence which has become remote in the chain of
causation is not contributory. Smith v. Blackwell, 250 S.C. 170, 156 S. E. 2d
867 (1967) (doctrines of contributory negligence and last clear chance are
mutually exclusive and both cannot apply to the same state of facts).
See also Seay v. Southern Ry. Co., 205 S.C. 162, 31 S.E.2d 133 (1944); Brown
v. George, 278 S.C. 183, 294 S.E.2d 35 (1982) (last clear chance doctrine does
not apply where the plaintiff's act combines and concurs with the defendant's
act as a proximate cause of the injury); Cooper v. Driggers, 276 S.C. 299, 277
S.E.2d 893 (1981) (doctrine applies only where the plaintiff's lack of due care
has become remote in the chain of causation and is but a mere condition of
his injury; it does not apply if plaintiff's act combines and concurs with the
defendant's act as a proximate cause of the injury); Jones v. A.C. Air Line R.
Co., 218 S.C. 537, 63 S.E.2d 436 (1951) (rule of last clear chance converts
plaintiff's prior negligence into the remote, rather than the proximate cause
of the injury); Jones v. Cannerella 297 S.C. 212, 375 S.E.2d 352 (Ct. App.
1988) (doctrine of last clear chance is but a phase of the doctrine of
proximate cause); Johnston v. Ward, 288 S.C. 603, 344 S.E.2d 166 (Ct. App.
1986) (before doctrine can be applied, plaintiff's negligence must have ceased
to operate as a proximate cause of the injury while there was still time for
the defendant's negligence to intervene).
A minority of jurisdictions which treat the doctrine of last clear chance
as a matter of proximate cause hold, upon adoption of comparative
negligence, that last clear chance remains a separate doctrine.6 However,
virtually every commentator our research reveals criticizes the rationalization
that last clear chance is a doctrine of proximate cause, finding that treating
it as a matter of proximate cause is inconsistent with adoption of comparative
negligence. See Prosser and Keeton, § 66 at pp. 462-463 (treatment of last
Wyman, 104 N.W.2d 817 (S.D. 1960). See also Thomas Trenkner, Modern
Development of Comparative Negligence Doctrine Having Applicability To
Negligence Actions Generally, 78 ALR3d 339, § 15(a) (hereafter Trenkner)
(setting forth jurisdictions retaining last clear chance after adoption of
clear chance as doctrine of proximate cause is out of line with idea of
proximate cause since any injury to the plaintiff, and defendant's subsequent
negligence, is generally within the risk which plaintiff created); Woods and
Deere, Comparative Fault § 8.2 at 173, citing MacIntyre, The Rationale of
Last Clear Chance, 53 Harv. L. Rev. 1225 at 1251-1252 (1940) (doctrine of
last clear chance is only a disguised escape from contributory negligence and
serves no useful purpose in jurisdictions adopting comparative negligence;
decisions superimposing last clear chance on comparative negligence schemes
"resulting from the greater fault meaning which the phrase 'proximate cause'
had acquired during the common law struggle to escape from the contributory
negligence bar, add injustice as well as complexity to an already confused
corpus juris); Grehen, Notes: Comparative Negligence, 81 Columbia L. Rev.
1668, 1678-80 (1981) (recognizing that retention of last clear chance is
inconsistent with the modern view of proximate causation under which causal
contribution of plaintiff's negligence would be recognized); Mutter, Moving to
Contributory Negligence in an Era of Tort Reform, 57 Tenn. L. Rev. 199, 275
(1990) (espousing that better view is proximate cause rationale should not be
used to justify retention of last clear chance in comparative negligence
jurisdiction); Calabresi and Cooper, New Directions in Tort Law, 30 Val. U.
L. Rev. 859 (1996) (adoption of comparative negligence has rendered doctrine
superfluous since it allows evaluation of each parties' negligence and
allocation of damages accordingly). It has also been stated that:
This rationale [of proximate cause] is merely verbal and
"cannot stand the most superficial analysis if it purports to
apply to plaintiff the test of legal cause generally used
today in the inquiry as to a defendant's liability." If
plaintiff's negligent wrongdoing causes injury to a third
party, he may be liable to the third party even though the
principal defendant had in relation to plaintiff "the last
Schwarz, at § 7.1, p. 130. See also Bettenga, Instructing the Jury on
Comparative Fault Issues, 14 Wm. Mitchell L. Rev. 807, 828 (1988)
(suggesting that retention of last clear chance based on issues of proximate
cause is inappropriate).
The above authorities are persuasive that the rationalization for last
clear chance as a matter of proximate cause is simply unnecessary where the
jury may compare the parties' negligence. Accordingly, we decline to do so.
We agree with the Court of Appeals that the better view is to hold that last
clear chance has been subsumed by adoption of comparative negligence such
that it remains a factor for the jury's consideration in comparing the parties'
fault, but that it does not totally relieve a plaintiff of his or her negligence.
To hold otherwise is inconsistent with the purpose and policy behind adoption
of comparative negligence. Accord Li v. Yellow Cab Co., supra (when
comparative negligence is adopted, the need for last clear chance as a
palliative of the hardships of the all or nothing rule disappears and its
retention results only in a windfall to the plaintiff in direct contravention of
the principle of liability in proportion to fault); see also Laws v. Webb, supra
(a doctrine that assigns sole liability to one party regardless of the amount
of fault simply cannot survive under a system of comparative negligence).
We therefore affirm the Court of Appeals' opinion.7
The question remains, however, whether the elements of the doctrine
are to be charged to the jury in weighing the parties' fault in a comparative
negligence case. We find such an instruction proper in an appropriate case.
Accord Eaton v. McLain, 891 S.W.2d 587, 591-92 (Tenn. 1995)(finding it
appropriate to give jury guidance as to their consideration of factors of last
clear chance; although doctrine no longer independent, it is still relevant to
jury's consideration). We find the following jury charge, as suggested by
Professors Hubbard and Felix,8 appropriate in the context of a comparative
In determining the relative percentages of negligence for the
plaintiff and the defendant, you should consider, as a factor
relevant to the defendant's share of negligence, whether the
plaintiff was in peril and unable to extricate himself from the
peril. If the plaintiff was in peril, you should also consider
whether the defendant was aware of that peril and if he was,
whether the defendant could have then avoided the injury to the
plaintiff if the defendant had used due care at that point.
The Court of Appeals' opinion is
AFFIRMED AS MODIFIED.
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.
doctrine of last clear chance as a matter of proximate cause is inconsistent
with this opinion, it is overruled.
8 See 43 S.C.L.R. at 325.