Contributory Negligence and “The Last Clear Chance” standard in Maryland

by Trey Ross, M.Ed., Esq.

Plaintiff:

“My mother passed away last month. She was in a nursing home and one of their new employees failed to provide her with the right dosage of her medication. Before her death, my mother suspected that the new guy was not giving her the right amount of meds. However, the employee appeared very cocky, so my elderly mother didn’t feel comfortable questioning him.

My mother eventually died from complications that could have been avoided much longer had she been given the correct amount of medication.

I’ve been told that, in Maryland, a person who has contributed to her own harm has no right to file a complaint. Is this true?”

Brief Answer:

No exactly. While the doctrine of “contributory negligence” can prevent a person from recovering for her injury, Maryland also recognizes “the last clear chance” doctrine. By establishing that the defendant had the last clear chance to avoid the harm to the victim, the victim can still hold the defendant responsible for her injury regardless of whether the victim was negligent.

Note: Since the plaintiff is solely interested in the law regarding contributory negligence, the response below will not look at other potential defenses the defendant may raise (e.g., assumption of the risk). Likewise, the response below will not examine whether or not the victim’s failure to question her dosage was an act of negligence. So, if you find that you are in a similar situation as the plaintiff here, please consult an attorney before making any final decisions regarding your case.

  1. What is Contributory Negligence?

As always, to establish that a defendant is liable for negligence, the plaintiff will need to show that the defendant had a duty, the duty was breached, an injury occurred, and that the defendant’s breach was the proximate cause of the injury.[1] However, if a plaintiff acts in a way that an ordinary person would not have acted (i.e., the plaintiff was negligent) and is injured, then the plaintiff is generally thought to be the proximate cause of her own injury; thus, the defendant should not be held liable.[2]  

For example, in Coleman v. Soccer Association of Columbia, an accomplished soccer player suffered severe injuries after the crossbar of a soccer goal fell onto his face.[3] The injury occurred after James Kyle Coleman – the soccer player who was injured – jumped up and grabbed the goal’s crossbar to hang from it.[4] As a result, the crossbar fell onto Mr. Coleman.   

At trial, the jury had to decide who was liable for the injuries to Mr. Coleman. Since there was evidence that the soccer goal was not properly secured to the ground, the jury found that the Soccer Association of Columbia (“Soccer Association”) was negligent in its failure to secure the goal.[5] In addition, the jury found that the Soccer Association’s negligence caused the plaintiff’s injuries.[6] However, the jury also found that the plaintiff, Mr. Coleman, was negligent in his act of hanging from the goal.[7]

Since the jury found that the plaintiff contributed to his own injury, the court held that the plaintiff was unable to recover.[8]

While the last clear chance doctrine can be a defense to a contributory negligence claim, it probably would not have been helpful to Mr. Coleman for the reasons discussed in section B below.

  • What is the last clear chance doctrine, and how does it work?

Since the contributory negligence standard can sometimes lead to harsh outcomes, the Court has adopted several exceptions to the rule.[9] One exception is the last clear chance doctrine which allows a negligent plaintiff to prevail if he can establish two things: (1) the defendant was negligent; and (2) “something new or sequential” occurred that gave the defendant a chance to prevent his act of negligence from leading to the plaintiff’s harm.[10]

For example, in Ritter v. Portera, a 17-year-old girl negligently chose to ride on the hood of a car driven by the defendant.[11] After the defendant sped away in his car, the plaintiff fell off the vehicle and was injured as the vehicle dragged her for approximately 20 feet. The Maryland Court of Special Appeals found that, although the plaintiff contributed to her own harm, the defendant had the last clear chance to avoid the injury since he drove the car after having knowledge that plaintiff had carelessly placed herself in danger.[12]

So, although it is generally understood that this doctrine requires that the court examine three separate acts of negligence (i.e., the defendant’s original negligent act, the plaintiff’s contributory negligence, and the defendant’s final negligent act), as illustrated in Ritter, two acts will suffice.[13] What is critical is that the defendant is aware that the plaintiff has placed herself in danger, and the defendant has time to correct his action before causing harm to the plaintiff.[14]

Unfortunately, if the plaintiff’s negligent act is concurrent with the defendant’s negligent conduct, the last clear chance doctrine will not apply.[15]

Note: While the last clear chance doctrine often arises in cases involving automobile accidents, it can also apply in medical malpractice suits.[16]

Summary:

In Maryland, a person who contributes to her own harm will often be solely liable for her harm even if another person’s negligence helped to bring about the injury. However, Maryland has a number of exceptions to this rule; one of which is the last clear chance doctrine. Still, an at-fault plaintiff will only be able to assert the last clear chance doctrine if the defendant had notice of the plaintiff’s peril early enough correct his actions and prevent injury to the plaintiff.


[1] E.g., Schultz v. Bank of Am., 990 A.2d 1078, 1086 (Md. 2010) (citing the four elements of negligence).

[2] Poole v. Coakley & Williams Construction, Inc., 31 A.3d 212, 224 (Md. 2011).

[3] No. 9 (Md. July 9, 2013).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Coleman, No. 9 (providing that exceptions to contributory negligence doctrine evolved to allow at-fault plaintiffs to recover such as in cases where the claimant is under five-years-old, and when the claim is based on strict liability or intentional conduct by a defendant).

[10] Id. (providing “the doctrine of last clear chance developed…to allow a plaintiff to recover, despite his or her contributory negligence, if he or she establishes “something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence” (quoting Sanner v. Guard, 203 A.2d 885, 888 (Md. 1964))).

[11] 59 Md. App. 65 (1984).

[12] Id.

[13] Id. (providing that a defendant was liable under the last clear chance doctrine for a single act of negligence).

[14] Id. (providing that “the [last clear chance] doctrine is not applicable unless the defendant discovered the plaintiff’s peril in time, [and] by the exercise of ordinary care…[the defendant could] have avoided the accident” (quoting  Kolish v. Wash., B. & A.R. Co., 131 A. 822 (1926)); Meldrum v. Kellam Distrib. Co., 211 Md. 504, 511-512 (1957) (providing “[n]otwithstanding previous negligence of the plaintiff, if, at the time when the injury was committed, it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie”).

[15]  Meldrum, 211 Md. at 512-513.

[16] Simmons v. Urquhart, 101 Md. App. 85, n. 13 (1994) (identifying the application of the last clear chance doctrine as appropriate in the context of medical malpractice) (citing Sharon Murphy, Contributory Negligence in Medical Malpractice: Are the Standards Changing to Reflect Society’s Growing Health Care Consumerism?, 17 U. Dayton L. Rev. 151, 155 (1991)).

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