Cunningham v. Western Liquid Propane Gas Service, Inc., 10710-1-I

• Decision Date: 17 December 1984
• Docket Number: No. 10710-1-I,10710-1-I
• Citation: 693 P.2d 123,39 Wn.App. 185
• Parties: Mike CUNNINGHAM, Respondent, v. WESTERN LIQUID PROPANE GAS SERVICE, INC., Appellant.
• Court: Washington Court of Appeals

Page 185

39 Wn.App. 185

693 P.2d 123

Mike CUNNINGHAM, Respondent, v. WESTERN LIQUID PROPANE GAS SERVICE, INC., Appellant.

No. 10710-1-I.

Court of Appeals of Washington Division 1.

Dec. 17, 1984.

Review Denied April 5, 1985.

Detels, Draper, Madden & Crockett, Frank W. Draper, Robert M. Kraft, Seattle, for appellant.

Chambers & Young, Thomas J. Chambers, Seattle, for respondent.

WARD WILLIAMS, Judge.

Mike Cunningham brought this action for personal injuries received from a collision with a truck-trailer owned by Western Liquid Propane Gas Service, Inc. After a trial to the court, sitting with a jury, judgment was entered in favor of Cunningham in the amount of $335,500. Western's motion for a new trial was denied and Western appeals. We affirm.

Cunningham was driving his motorcycle west on James Street in Kent when a Western truck-trailer, being driven east on James Street by L. Glenn Todd, turned left in front of him. Todd had activated his left turn signal and had stopped while several westbound cars passed. Apparently he did not see Cunningham's motorcycle which was 358 feet from the point of impact when the truck began its turn. After seeing the truck, Cunningham, who had been accelerating and looking in his rear view mirror, applied only his rear brake, the motorcycle skidded 91 feet, fell over and skidded 11 more feet before colliding with the front end of the Western trailer. Cunningham and his motorcycle were then dragged 26 feet by the truck which continued its turn on into the parking lot.

The jury found Western 61 percent negligent and Cunningham 39 percent negligent.

The principal issue is whether the trial court erred in refusing to instruct the jury per Western's request on the last clear chance doctrine. Western argues that any negligence on the part of its driver was remote and was superceded by the negligence of Cunningham who had the last opportunity to avoid the accident. Western proposed two instructions on the last clear chance doctrine. ¹ Read together these instructions would require a verdict for Western if the jury determined that Cunningham failed to exercise the last opportunity to avoid a situation originally created by the other driver's negligence.

The last clear chance doctrine developed as an outright exception to the contributory negligence rule:

The rationale underlying this doctrine is that even though the plaintiff has been contributorily negligent he should still be able to recover his entire damages if the defendant had the last opportunity to avoid the accident. The application of the doctrine is particularly apt in cases where the plaintiff is in a helpless predicament, owing to his own negligence, and the defendant, although perceiving plaintiff's situation and realizing the plaintiff's peril, fails negligently thereafter to avoid injuring the plaintiff.

(Footnote omitted.) Kaatz v. State, 540 P.2d 1037, 1050 (Alaska 1975); accord Shiels v. Purfeerst, 39 Wash.2d 252, 235 P.2d 161 (1951); Leftridge v. Seattle, 130 Wash. 541, 228 P. 302 (1924). The doctrine is inconsistent with comparative negligence, a method of ascertaining damages which attempts to apportion fault and allow some recovery, rather than barring it completely, by one who is contributorially negligent. See Seattle-First Nat'l Bank v. Shoreline Concrete, 91 Wash.2d 230, 236, 588 P.2d 1308 (1978); Wenatchee Wenoka Growers Ass'n v. Krack Corp., 89 Wash.2d 847, 850, 576 P.2d 388 (1978); Godfrey v. State, 84 Wash.2d 959, 965, 530 P.2d 630 (1975). Thus, the last clear chance doctrine is not applicable under Washington's comparative negligence statute, RCW 4.22.005. Other jurisdictions have also discarded the doctrine upon adopting comparative negligence. Kaatz v. State, 540 P.2d 1037 (Alaska 1975); Li v. Yellow Cab Co., ...