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Court Permits Wrongful Death Plaintiff’s Case to Proceed after Applying the “Last Clear Chance Doctrine”

Earlier this month, an appellate court in Virginia issued a written opinion in a case involving a pedestrian who was struck and killed by a passing train. The case presented the court with the opportunity to discuss the “last clear chance doctrine” as it applies in that jurisdiction. Ultimately, the court held that the plaintiff’s complaint alleged facts that, if true, would allow the jury to determine that the defendant railroad operator had the opportunity to avoid the collision but failed to do so. As a result, the court permitted the plaintiff’s case to proceed toward trial.

Railroad TracksWhile the determination of whether a party is able to avoid an accident is relevant in Florida personal injury cases, the last clear chance doctrine is not something that would come up under Florida law. This is because Florida applies a far less restrictive doctrine when determining which plaintiffs are entitled to recover damages.

Comparative Fault Versus Contributory Negligence

The jurisdiction where this case arose, Virginia, is a contributory negligence state. Under the doctrine of contributory negligence, an accident victim who is at all at fault for the accident resulting in their injuries is not entitled to recover from any other defendants that may have also contributed to the accident. This very strict rule prohibits plaintiffs from recovering in a significant amount of personal injury cases. The last clear chance doctrine acts as a sort of exception to the application of the contributory negligence rule, and it allows negligent accident victims to recover in some circumstances in which the defendant could have avoided the accident.

Florida courts, on the other hand, have determined that the doctrine of contributory negligence is “unjust and inequitable,” due to the harsh effects it can have on plaintiffs who are minimally at fault. Thus, Florida courts apply the doctrine of comparative fault. Under a comparative fault analysis, an at-fault plaintiff can still recover for their injuries, but their total recovery amount will be reduced by their percentage of fault. For example, in the above case, if a jury determined that the plaintiff suffered $1 million in damages and also determined that the pedestrian was 25% at fault and the railroad operator 75% at fault, the plaintiff’s award amount would simply be reduced by 25%. Thus, the plaintiff’s total recovery amount would be $750,000.

Have You Been Injured in a Florida Accident?

If you or a loved one has recently been injured in any kind of Florida motor vehicle accident, you may be entitled to monetary compensation. It is important to keep in mind that under Florida law, even if you or your loved one was partially at fault for the accident, you may still be entitled to recover for your injuries. To learn more about Florida personal injury law and how it may apply to your case, call one of the dedicated personal injury attorneys at the South Florida law firm of Cohn & Smith at 954-431-8100 to schedule a free consultation today.

Related Blog Posts:

Florida Appellate Court Invalidates Arbitration Agreement Signed by Nursing Home Resident’s Daughter, South Florida Injury Attorney Blog, March 27, 2017.

Plaintiff Attempts to Use Negligent Entrustment Theory to Hold Employer Liable in Drunk Driving Accident Caused by Employee, South Florida Injury Attorney Blog, February 22, 2017.

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