Spearing v. Starcher, No. 1294

• Court: Superior Court of Pennsylvania
• Writing for the Court: WIEAND
• Citation: 532 A.2d 36,367 Pa.Super. 22
• Docket Number: No. 1294
• Decision Date: 05 October 1987
• Parties: Keith W. SPEARING, Appellant, v. Cynthia G. STARCHER, Appellee. Pittsburgh 1986.

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532 A.2d 36 367 Pa.Super. 22 Keith W. SPEARING, Appellant,
v.
Cynthia G. STARCHER, Appellee. No. 1294 Pittsburgh 1986. Superior Court of Pennsylvania. Argued May 14, 1987.
Filed Oct. 5, 1987.

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[367 Pa.Super. 23] Mark J. Homyak, Carnegie, for appellant.

Louis C. Long, Pittsburgh, for appellee.

Before WIEAND, KELLY and POPOVICH, JJ.

[367 Pa.Super. 24] WIEAND, Judge:

In this appeal from a judgment entered following a defense verdict in which the jury specifically found that the defendant-driver had not been negligent, the plaintiff-appellant argues that the trial court erred when it (1) refused a requested jury instruction on the "last clear chance" doctrine, and (2) gave incorrect jury instructions on the "assured clear distance ahead" rule.

At or about 4:30 a.m. on December 8, 1982, Keith W. Spearing was driving his Volkswagen automobile in a northwardly direction on Route 119 in Indiana County when he allegedly hit a pothole in the road. He testified that the impact caused him to lose control of his vehicle, as a result of which it swerved across the roadway into the southbound lane, where it contacted and slid along a guardrail. The vehicle next struck a bridge abutment, which caused it to bounce into the southbound lane of the roadway, where it came to rest. Finding that he could neither restart his vehicle nor open the door on the driver's side, Spearing was moving across the front seat to exit on the passenger's side when his vehicle was struck by a vehicle operated in a southwardly direction by Cynthia G. Starcher. Spearing sustained severe and permanently disabling injuries.

The jury hearing the action which Spearing filed against Starcher found, in response to a special interrogatory, that Starcher had not been negligent. Post-trial motions were denied, and judgment was entered on the verdict. Spearing appealed.

The "last clear chance" as an offset to contributory negligence is a doctrine which has never been adopted in Pennsylvania. See: Kasanovich v. George, 348 Pa. 199, 202, 34 A.2d 523, 525 (1943). Despite the fact that the "last clear chance" doctrine has never been adopted by the Supreme Court, this Court by dictum has suggested that the doctrine could be applied as an offset against the harshness of the rule which barred recovery if a plaintiff were guilty of contributory negligence. Thus, in Lehman v. McCleary, 229 Pa.Super. 508, 329 A.2d 862 (1974), where the issue was [367 Pa.Super. 25] the admissibility of evidence to prove the plaintiff's intoxication, this Court said, by way of dictum, the following:

And even if his own intoxication caused him to be in the roadway, this will not relieve the operators of the motor vehicles from striking him since under the discovered peril doctrine, which holds: that a plaintiff may recover notwithstanding his own negligence if the defendant failed to exercise due care to avoid inflicting the injury after he knew or should have known that the plaintiff was in a position of peril. Curt v. Ziman, 140 Pa.Super. 25, 12 A.2d 802 (1940). "A helpless human being on the highway is entitled to protection from motorists whether he be a hopeless dipsomaniac or a model of sobriety." Brazel v. Buchanan, 404 Pa. 188, 171 A.2d 151 (1961).

Id. at 512, 329 A.2d at 864. See also: Emerick v. Carson, 325 Pa.Super. 308, 316,

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472 A.2d 1133, 1137 (1984) (where appellant contended that the failure to instruct the jury on the "discovered peril" doctrine had been reversible error, it was held that there had been no error because, in any event, the doctrine had no application to the facts).

We conclude that, whatever the history of the "last clear chance" doctrine in Pennsylvania, it can no longer serve a useful purpose in view of the legislative enactment of the Comparative Negligence Law of 1978, 42 Pa.C.S. § 7102.

The "last clear chance" doctrine was adopted in other jurisdictions as a way of avoiding the harsh results of the contributory negligence rule. See: Prosser & Keeton on Torts, § 66, at 464 (5th ed. 1984). It was adopted in different forms and by different names and "[was] attended with much confusion." Id. The trend in those states which adopted the doctrine has now been to abrogate the same as being superfluous upon adoption of a system of comparative negligence. Id. at 468. See: Kaatz v. State, 540 P.2d 1037, 1047 (Alaska 1975); Li v. Yellow Cab Co., 13 Cal.3d 804, 829, 532 P.2d 1226, 1240, 119 Cal.Rptr. 858, 875 (1975); Burns v. Otatti, 513 P.2d 469, 472 (Colo.App.1973); Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973); Alvis v. Ribar, [367 Pa.Super. 26] 85 Ill.2d 1, 27, 52 Ill.Dec. 23, 35, 421 N.E.2d 886, 898 (1981); Cushman v. Perkins, 245 A.2d 846, 847 (Me.1968); Davies v. Butler, 95 Nev. 763, 775, 602 P.2d 605, 613 (1979); Scott v. Rizzo, 96 N.M. 682, 687, 634 P.2d 1234, 1239 (1981); French v. Grigsby, 571 S.W.2d 867, 867 (Tex.1978); Cunningham v. Western Liquid Propane Gas Service, Inc., 39 Wash.App. 185, 187, 693 P.2d 123, 124 (1984); Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584, 588-589 (1981); Danculovich v. Brown, 593 P.2d 187, 195 (Wyo.1979); V. Schwartz, Comparative Negligence § 7.2 (1974). The reasoning was articulated best by the Supreme Court of Maine in Cushman v. Perkins, supra at 848-849, as follows:

In our opinion the appearance and survival of the last clear chance doctrine is best explained by a frequently occurring dissatisfaction in the courts with the result of the operation of the contributory negligence rule. It is apparent that this dissatisfaction has also prevailed in some legislative bodies and recent years have seen several jurisdictions adopt statutes which seek to apportion liability between the parties on the basis of their respective degrees of fault. In some of these jurisdictions it has been recognized that when the triers of the fact are evaluating the degree of a plaintiff's negligence, its continuation or cessation, its nearness or remoteness and its efficiency in causation with that of the defendant, any necessity for the use of the absolute rule of last clear chance has disappeared. We believe any justification for it has also disappeared with the adoption of a doctrine which seeks to measure both parties' negligence by the same impartial standard.

See also: Li v. Yellow Cab Co., supra; Davies v. Butler, supra; Abalos v. Oil Development Co., 544 S.W.2d 627, 634 (Tex.1976) (Pope, J., concurring).

We agree with the reasoning of the Supreme Court of Maine and adopt it as our own. Therefore, to the extent that the last clear chance or discovered peril doctrine has ever been a part of the law of this Commonwealth, it no longer serves a useful purpose and must be abrogated. [367 Pa.Super. 27] The trial court did not err when it denied a requested jury instruction on the "last clear chance."

The "assured clear distance ahead" rule is a part of the Vehicle Code in Pennsylvania. It provides, in pertinent part, that "[n]o person shall drive a vehicle ... at a speed greater than will permit the driver to bring his [or her] vehicle to a...