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Last Clear Chance Trumps Gross Contributory Negligence in Aggressive Drunk Driver Case

In McCauley v. Thomas, the jury found that even though the plaintiff had contributed to her own injury by knowingly riding with a drunk driver, the defendant driver had the last clear chance to avoid the one-car crash.

Defendants asserted that the plaintiff was grossly contributorily negligent because she knew that the driver was intoxicated.  McCauley and Thomas had been drinking alcohol together prior to the wreck, the defendant had been driving erratically before the wreck, and the plaintiff decided to stay in the car instead of walking alone at night.  Last clear chance is the only theory the plaintiff could use to still recover if she was in fact grossly contributorily negligent.  The elements of last clear chance are:

(1)       The plaintiff placed herself in a position of either helpless or inadvertent peril.  The plaintiff's prior contributory negligence placed her in a position from which she is powerless to extricate herself;

(2)       The defendant knew or should have known about the plaintiff's position of peril and inability to escape from it;

(3)       The defendant had the time and means to avoid the injury to the plaintiff by the exercise of reasonable care after the defendant discovered or should have discovered the plaintiff's perilous position;

(4)       The defendant negligently failed to use the available time and means to avoid the accident;

(5)       The defendant's failure caused the plaintiff's injury.

After the plaintiff got into the car with the intoxicated driver, she was in a position of peril that the defendant should have recognized.  She couldn't escape the peril because the car was moving.  Did the intoxicated defendant have the time and means to avoid the accident?  McCauley v. Thomas is a unique drunk driver case because the defendant didn't wreck the car just because he was intoxicated.  The plaintiff testified that the two had been arguing prior to the wreck.  Right after turning onto a dead-end road, the plaintiff said the driver "just blew up" and started accelerating toward a sharp right turn.  "He's yelling, and he's screaming, and I'm just--I'm apologizing, trying to get him to stop," the plaintiff testified.  The driver didn't try to turn away from the dead-end, and the police didn't find any skid marks before the wreck site.  During the crash, the plaintiff broke her jaw and had to have it wired shut for six months.

The jury found the plaintiff was entitled to recovery even though she contributed to her own injury because the defendant had the last clear chance to avoid the crash that injured the plaintiff.  In most drunk driver cases, the passenger is considered contributorily negligent, so his or her recovery is barred.  But this case shows that even a drunk driver can have the last clear chance.

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