Connolly v. Steakley, 33710

Decision Date25 January 1967
Docket NumberNo. 33710,33710
Citation197 So.2d 524
CourtFlorida Supreme Court
PartiesCatherine E. CONNOLLY and Martin J. Connolly, husband and wife, Petitioners, v. Wiley C. STEAKLEY, Respondent.

Early & Early, Sarasota, for petitioners.

Grimes, Grimes, Goebel & Parry, Bradenton, for respondent.

PER CURIAM.

Writ of certiorari having heretofore issued, argument having been heard, and the court having examined the record and briefs, it appears that the writ was improvidently issued. Accordingly, the writ of certiorari heretofore issued in this cause is discharged.

It is so ordered.

THORNAL, C.J., ROBERTS and BARNS (Retired), JJ., and McCORD, Circuit Judge, concur.

O'CONNELL, J., concurs specially with opinion.

DREW, J., dissents with opinion.

O'CONNELL, Justice (concurring specially):

Petitioners, the Connollys, seek review by certiorari, on conflict theory, of the decision of the District Court of Appeal reported at 165 So.2d 784. As will be explained later, that conflict does exist.

This case involves the applicability of the doctrine of last clear chance. In order to discuss the conflict between the subject decision of the District Court and that of this Court in James v. Keene, Fla.1961, 133 So.2d 297, it is necessary that I discuss again in an extended manner the doctrine of last clear chance as this court has done on three prior occasions. James v. Keene, supra; Wawner v. Sellic Stone Studio, Fla.1954, 74 So.2d 574; and Merchants' Transportation Co. v. Daniel, 1933, 109 Fla. 496, 149 So. 401. Florida's concern over the proper definition and application of this doctrine is understandable. As Dean Prosser observed, 'the last clear chance cases present one of the worst tangles known to the law.' 51 Mich.L.Rev. 465, 473 (1953). Nevertheless, since the doctrine is a part of the law of Florida this court must continue to strive to improve understanding of its application.

There is general agreement that the last clear chance doctrine (also variously known as the 'humanitarian doctrine,' 'the doctrine of discovered peril,' 'the doctrine of subsequent negligence,' 'the doctrine of supervening negligence,' and similar names) developed, if it did not originate, as a way of mitigating the harshness of the common law rule of contributory negligence. Stated very simply, the effect of the doctrine is that in certain prescribed circumstances the plaintiff in a negligence action will not be precluded from recovery by the fact that his own negligence contributed to his injury.

My concern here is with identifying the kinds of situations in which last clear chance is properly applied. Some of the operative factors in the doctrine's application are fixed, in the sense that they must always be present. Others are variables and therefore result in different categories of factual situations in which it is appropriate to consider application of the last clear chance rule. Among the fixed, or The decisions applying last clear chance have turned on two variables relating to the plaintiff and two others relating to the defendant. Therefore, taken with the fixed factors already listed, these result in four categories of factual situations in which application of the last clear chance rule can properly be considered. The description of these categories contained in 2 Harper and James, The Law of Torts, p. 1245, is adequate:

universal, factors are these: (1) The plaintiff must have been guilty of negligence which placed him in a position of peril; (2) There must be something about the plaintiff's situation that would serve to put the injuring party (the defendant) on notice of the fact that plaintiff is in peril; (3) The defendant must have been under a legal duty to notice and appreciate plaintiff's peril and to avoid inflicting injury upon him; (4) The defendant must have had a capability, under existing circumstances, to avoid inflicting the injury; and (5) The defendant must have failed to take advantage of this opportunity, with resulting injury to the plaintiff.

'(1) Where plaintiff is in peril and is unable to get out of it by the exercise of reasonable care, and defendant knows plaintiff's position and either realizes or has reason to realize the danger to plaintiff, and thereafter could have avoided the injury by the use of reasonable care.

'(2) Where plaintiff is similarly in helpless peril and defendant, though he did not discover plaintiff, would have discovered and appreciated plaintiff's danger in time to avoid injuring him by the use of reasonable care, had defendant exercised the vigilance which the law required of him for plaintiff's protection.

'(3) Where plaintiff himself could avoid danger by checking his approach to it or by stepping out of its path but fails to do so because of negligent inattention, and defendant knows plaintiff's position and realizes or has reason to realize his inattention, and after such knowledge and (actual or constructive) realization could have avoided injury by the use of reasonable care.

'(4) Where both plaintiff and defendant are negligently inattentive, but defendant would have discovered and realized plaintiff's danger, had he exercised the vigilance he owed to plaintiff, in time to avoid injuring plaintiff by the use of reasonable care.'

I shall refer to these four situations as Categories One, Two, Three and Four.

Category One presents the kind of situation in which the last clear chance rule is applied by nearly all jurisdictions. 2 Harper and James, p. 1246; 65A C.J.S. Negligence § 137; 92 A.L.R. 83; 119 A.L.R. 1052; 171 A.L.R. 375. Moreover, this is the category to which the most frequently encountered rationale for the rule--that defendant was the last wrongdoer--applies most appropriately. It it true that in this circumstance the plaintiff's negligence has put him in the position of peril and therefore contributed to his injury. Even so, under this hypothetical his negligence could have ceased before that of the defendant occurred. Therefore, in a very real sense the defendant would be the last wrongdoer in such situations.

In Category Two cases, in which plaintiff is also in helpless peril, liability is imposed on the basis of defendant's failure to avoid the injury when he ought to have known, as opposed to having actually known, of the plaintiff's predicament. Most, though not all, jurisdictions apply the doctrine in situations of this category. 2 Harper and James, p. 1246; 65A C.J.S. Negligence, § 137; 92 A.L.R. 86; 119 A.L.R. 1055; 171 A.L.R. 379. As with Category One, application of the doctrine to this category of situations can also be rationalized with some accuracy in terms of last wrongdoer and proximate cause principles. As before, plaintiff's negligence has terminated and is followed by that of the defendant. Here A considerable number of jurisdictions also apply the last clear chance rule to situations in the third category. 2 Harper and James, p. 1246; 65A C.J.S. Negligence § 137; 92 A.L.R. 101; 119 A.L.R. 1069; 171 A.L.R. 395. Here, although the plaintiff is in a position of peril, he is not helpless but only inattentive and unaware of his own peril. Although defendant actually sees the plaintiff and is aware of his peril and inattentiveness in time to avoid injuring him, he fails for some reason to take advantage of the opportunity to avoid the injury. Obviously, this application of the rule is not easily rationalized in terms of last wrongdoer principles. The negligence of the plaintiff, consisting of inattentiveness concerning his own safety, and the negligence of the defendant, in failing to avoid the injury, both continue to the time of the accident. Although their respective acts of negligence differ in kind, they are actually concurrent. Although the negligence of defendant may be the more culpable, he is in no sense the Last wrongdoer. It has been suggested that the comparative negligence principle would provide a better rationalization in this circumstance. Harper and James, p. 1252. Be that as it may, most jurisdictions view this kind of situation as a proper one for the application of the last clear chance rule.

the negligence of the defendant is in failing to discover the plaintiff's predicament rather than in failing to avoid injuring one whose peril he actually knew about. Nevertheless, though his negligence may perhaps be less culpable than under Category One, he is still the last wrongdoer in the literal sense.

The fourth category is as noncontroversial as the first, for substantially all jurisdictions, apparently excepting only Missouri and Connecticut, refuse to apply the doctrine in this circumstance. 2 Harper and James, p. 1246, 65A C.J.S. Negligence § 137; 92 A.L.R. 128; 119 A.L.R. 1075; 171 A.L.R. 403. Here the negligent acts of plaintiff and defendant are not only concurrent, but also equivalent. The negligent failure of the plaintiff to discover his own peril is matched by the negligent failure of the defendant to discover the peril of the plaintiff. It is generally recognized that there is no valid reason to prefer the plaintiff in such situations. It is apparent that refusal to apply the rule in this circumstance can be explained in terms of last wrongdoer principles, for neither party is the last wrongdoer.

This Court gave its first explicit recognition to the last clear chance doctrine in the case of Merchants' Transp. Co. v. Daniel, 1933, 109 Fla. 496, 149 So. 401. That was an action brought by a widow for the wrongful death of her husband who had been struck by defendant's truck. The deceased was employed by the county as a road foreman and was, at the time of his death, working with a group of men on a narrow bridge. Defendant driver of the truck approached the bridge from around a curve in the road at a high rate of speed. Despite the fact that he had a clear view of the bridge for some two hundred feet, defendant failed to see the work group in time to avoid running into...

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