Answer to Weekly Bar Question 03/24/08

(B) is the best response, because Sid's last clear chance wiped out the effect of Fran's contributory negligence.  The last clear chance doctrine states that if, just before the accident, the defendant had the opportunity (the "last clear chance") to prevent the harm, and the plaintiff did not have such an opportunity, the existence of the last clear chance wipes out what would otherwise be the fatal effect of the plaintiff's contributory negligence. 

The doctrine applies in (and only in) contributory negligence jurisdictions, and allows a plaintiff to recover despite his own contributory negligence, which would otherwise be a bar to recovery if plaintiff contributed in any way to the event giving rise to the claim. 

The facts tell us that (1) Sid saw Fran's peril; (2) Sid had sufficient distance to slow to a controlled stop before hitting Fran; and (3) Fran's car was halted, so she no longer had the opportunity to get out of the way.  Therefore, the requirements for last clear chance seem to be satisfied.  In any event, this choice says that Fran will win if Sid had a last clear chance, and that's definitely a correct statement of doctrine. 

(A) is not the best response, because the answer states a rule for comparative rather than contributory negligence.  Under comparative negligence a plaintiff may recover if his negligence was less serious than that of the defendant.  But in a contributory negligence jurisdiction, even minor negligence by the plaintiff wipes out all recovery (assuming no doctrine like last clear chance applies). 

(C) is not the best response, because the answer dose not take into consideration the last clear chance exception to contributory negligence.  As described in the discussion of choice (B), the last clear chance doctrine, if applicable, would wipe out the effects of Fran's contributory negligence.  Therefore, even though Fran's conduct was a legal cause of the accident, she can recover. 

(D) is not the best response, because the assumption of risk doctrine would require Fran to know that Sid was going to try to swerve rather than coming to a stop.  The assumption of risk doctrine states that a plaintiff may be denied recovery if he knew of and voluntarily assumed the risks caused by defendant's acts.  Since there is no indication that prior to the accident Fran knew of, or voluntarily assumed, the risk that Sid would behave in anything like the way he did, the doctrine has no application.