THE STATE OF SOUTH CAROLINA

In The Supreme Court

John David Spahn, Petitioner,

v.

Town of Port Royal, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

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.

FACTS/ISSUE

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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

negligence.

DISCUSSION

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

vehicle.

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

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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).

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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

comparative negligence).

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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

clear chance."

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

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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

negligence case:

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.

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