DOCSLIB.ORG

Comparative Negligence in South Carolina: Implementing Nelson V

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Comparative Negligence in South Carolina: Implementing Nelson V South Carolina Law Review Volume 43 Issue 2 Article 4 Winter 1992 Comparative Negligence in South Carolina: Implementing Nelson v. Concrete Supply Co. F. Patrick Hubbard University of South Carolina School of Law Robert L. Felix University of South Carolina School of Law Follow this and additional works at: https://scholarcommons.sc.edu/sclr Part of the Law Commons Recommended Citation Hubbard, F. Patrick and Felix, Robert L. (1992) "Comparative Negligence in South Carolina: Implementing Nelson v. Concrete Supply Co.," South Carolina Law Review: Vol. 43 : Iss. 2 , Article 4. Available at: https://scholarcommons.sc.edu/sclr/vol43/iss2/4 This Article is brought to you by the Law Reviews and Journals at Scholar Commons. It has been accepted for inclusion in South Carolina Law Review by an authorized editor of Scholar Commons. For more information, please contact [email protected]. Hubbard and Felix: Comparative Negligence in South Carolina: Implementing Nelson v. COMPARATIVE NEGLIGENCE IN SOUTH CAROLINA: IMPLEMENTING NELSON V. CONCRETE SUPPLY CO.* F. PATRICK HUBBARD** ROBERT L. FELIX*** I. NELSON V. CONCRETE SUPPLY Co....................... 275 A. The Form of Comparative Fault Adopted by Nelson 277 B. Questions Concerning Future Developments ....... 281 II. EXCEPTIONS TO CONTRIBUTORY NEGLIGENCE AS A TOTAL BAR TO RECOVERY .................................... 282 A. Recklessness of Defendant ....................... 282 B. Last Clear Chance .............................. 283 C. Duties to Protect Foreseeably Negligent Victims... 285 1. FiduciaryRelationships ...................... 285 2. Children ........... ........................ 285 3. Liquor Licensees and Patrons ................ 286 4. ForeseeableMisuse of Products ............... 286 III. DEFENSES SIMILAR TO CONTRIBUTORY NEGLIGENCE ........ 288 A. Assumption of Risk ............................. 288 1. Retention of the Doctrine as a Total Bar to R ecovery .................................... 289 2. Rejection of the Doctrine as a Total Bar to R ecovery .................................... 289 * Preliminary drafts of this Article were presented at the 1991 South Carolina Circuit Judges' Conference and at several CLE programs on comparative negligence. The comments at these proceedings have been helpful in the preparation of the final version of this Article. Judge William B. Traxler, Jr. and his clerk, Allen D. Smith, provided valuable assistance by sharing a draft of a paper on the same topic. Ms. Eileen Schoen Githens, a second-year law student, prepared the tables at the end of this Article and contributed to the final product in a number of other important ways. ** Motley Distinguished Professor of Tort Law, University of South Carolina School of Law. B.A. 1966, Davidson College; J.D. 1969, New York University; LL.M. 1973, Yale University. *** James P. Mozingo Il Professor of Law, University of South Carolina School of Law. A.B. 1956, LL.B. 1959, University of Cincinnati; M.A. 1962, University of British Columbia; LL.M. 1967, Harvard University. Published by Scholar Commons, 1992 1 SouthSOUTH Carolina CAROLINA Law Review, LAW REVIEWVol. 43, Iss. 2 [1992], Art. 4[Vol. 43 a. Unreasonable Assumption of Risk-Inclusion Within a Comparative Schem e ................................. 290 b. Reasonable Assumption of Risk ........... 291 3. Express Assumption of Risk-A Total Bar to Recovery ...... ......................... 292 4. Assumption of Risk, Recklessness, and Duty ... 292 B. Harm from Avoidable Consequences or Failure to Mitigate H arm .................................. 293 IV. CAUSES OF ACTION TO WHICH THE COMPARATIVE NEGLIGENCE DOCTRINE MAY APPLY ...................... 295 A. Intentional Torts ............................... 296 B. Strict Liability in Tort .......................... 296 1. Statutory Schemes of Strict Liability ......... 296 2. Common-Law Schemes of Strict Liability ...... 298 C. Action for Injury as a Result of Breach of Warranty 298 D. Misrepresentation ............................... 299 1. Fraud ...................................... 299 2. Negligent Misrepresentation.................. 300 3. Other Misrepresentation ...................... 302 E . N uisance ....................................... 303 F. Standards of Care That Are Less Than Due Care . 304 V. M ULTIPLE PLAINTIFFS ................................. 305 VI. MULTIPLE DEFENDANTS ............................... 305 A. Joint and Several Liability, Contribution, and Indem nity ...................................... 305 B. Causation Issues ................................ 307 C. Phantom Defendants .......................... 308 VII. THE QUESTION OF SETOFF ............................. 312 VIII. LIMITATIONS ON LIABILITY ............................. 313 IX. PUNITIVE DAMAGES ................................... 314 X. POSSIBLE JURY INSTRUCTIONS .......................... 315 A. Basic Introductory Charge ....................... 316 B. The Charge Concerning the Comparison .......... 316 1. The Use of Interrogatories or Special Verdict Questions ................................... 316 a. Introductory Charge ..................... 317 b. The Six Basic Special Verdict Questions .. 318 c. The Role of the Jury .................... 319 2. General Verdict Instruction .................. 320 3. Other Charges ............................... 321 C. Guidance for Determining Percentages............ 322 D. Substantive Issues .............................. 323 1. Recklessness ................................ 323 2. Last Clear Chance ........................... 325 https://scholarcommons.sc.edu/sclr/vol43/iss2/4 2 1992] COMPARATIVE Hubbard and Felix: Comparative NegligenceNEGLIGENCE in South Carolina: Implementing Nelson v. 3. Assumption of Risk .......................... 326 X I. CONCLUSION ......................................... 326 TABLES: Table 1: Initial Adoption of Comparative Negligence Systems ....................... 329 Table 2: Current Status of Comparative Negligence Systems ....................... 331 Table 3: State-by-State Analysis of Comparative Negligence Systems ....................... 332 Table 4: State-by-State Analysis of Comparative Negligence Systems and Treatment of Multiple Defendants-Phantom Defendants ......... 338 Table 5: State-by-State Analysis of Comparative Negligence and Strict Products Liability ................................. 341 I. NELSON V. CONCRETE SUPPLY Co. Prior to Nelson v. Concrete Supply Co.' South Carolina followed the common-law rule that contributory negligence is a complete bar to recovery for negligently inflicted injury unless, for example, the de- fendant was reckless or had the last clear chance to avoid the cause of the injury.2 Earlier attempts to change this rule by adopting a system of comparative fault were not successful. In particular, the South Caro- lina Supreme Court quashed, on procedural grounds, a court of appeals opinion 3 that adopted comparative fault.4 Further, the supreme court 1. 303 S.C. 243, 399 S.E.2d 783 (1991). 2. F. PATRICK HUBBARD & ROBERT L. FELIX, THE SOUTH CAROLINA LAW OF TORTS 134-43 (1990); see McLean v. Atlantic Coast Line R.R., 81 S.C. 100, 112, 61 S.E. 900, 904 (1908) (noting explicitly that the doctrine of comparative negligence is not recognized in South Carolina). 3. Langley v. Boyter, 284 S.C. 162, 325 S.E.2d 550 (Ct. App. 1984), quashed per curiam, 286 S.C. 85, 332 S.E.2d 100 (1985). 4. Langley v. Boyter, 286 S.C. 85, 332 S.E.2d 100 (1985) (per curiam). In reversing the court of appeals, the supreme court concluded that courts deciding the issue of whether to adopt comparative fault "must await the permission of this Court before a change. is brought about, unless the Legislature acts on the matter beforehand." Id. at 87, 332 S.E.2d at 101. The adoption of comparative negligence in South Carolina is similar to the initial pattern followed in Illinois. An intermediate appellate court in Illinois adopted compara- tive negligence in 1967, and the Illinois Supreme Court reversed on the ground that such action should be taken, if at all, by the legislature. Maki v. Frelk, 239 N.E.2d 445 (Ill. Published by Scholar Commons, 1992 3 SouthSOUTH Carolina CAROLINA Law Review, LAW REVIEWVol. 43, Iss. 2 [1992], Art. [Vol.4 43 previously had held that several statutory comparative negligence schemes which addressed specific areas were unconstitutional on equal protection grounds.5 In prospective dictum Nelson adopted comparative negligence as the law of South Carolina. The court stated: For all causes of action arising on or after July 1, 1991, a plaintiff in a negligence action may recover damages if his or her negligence is not greater than that of the defendant. The amount of the plaintiff's recovery shall be reduced in proportion to the amount of his or her negligence. If there is more than one defendant, the plaintiff's negli- gence shall be compared to the combined negligence, of all 1968), reu'g 229 N.E.2d 284 (Ill. App. Ct. 1967). In 1981 the Illinois Supreme Court, taking the step it had been unwilling to take in 1968, adopted comparative fault in re- sponse to a stalemate in the legislature. Alvis v. Ribar, 421 N.E.2d 886 (Ill. 1981). The Illinois Legislature adopted a comparative fault scheme in 1986. 5. See Marley v. Kirby, 271 S.C. 122, 245 S.E.2d 604 (1978) (per curiam) (holding that special statutory comparative negligence scheme which applied solely to motor vehi- cle accidents violated the Equal Protection Clause); see also Wessinger v. Southern Ry., 470 F. Supp. 930 (D.S.C. 1979) (relying on Marley to hold unconstitutional
Load more

Recommended publications
  • WEST VIRGINIA Tort Profile
    100 South Queen Street, Suite 200, Martinsburg, WV, 25401 / 304.596.2277 T / 304.596.2111 F www.fandpnet.com WEST VIRGINIA Tort Profile ©Franklin & Prokopik. All rights reserved (rev 1/2020) The West Virginia Tort Law Profile is not intended to provide specific legal advice or opinions, but rather to provide general information. If you need additional information regarding West Virginia law, or in relation to a specific claim, please do not hesitate to call upon us. (January 2020) TABLE OF CONTENTS I. Overview of the West Virginia Court System ................................................ 1 A. Trial Courts ........................................................................................... 1 1. Magistrate Court ........................................................................ 1 2. Family Court ............................................................................... 1 3. Circuit Court .............................................................................. 2 4. Reputation of Jurisdictions in West Virginia ........................... 2 5. Arbitration / Mediation .............................................................. 3 B. Appellate Courts ................................................................................... 3 1. The Supreme Court of Appeals of West Virginia ...................... 3 II. Commencement of Action............................................................................... 4 A. Venue ....................................................................................................
    [Show full text]
  • SCC File No. 39108 in the SUPREME COURT of CANADA (ON APPEAL from the COURT of APPEAL for BRITISH COLUMBIA) BETWEEN: CITY OF
    SCC File No. 39108 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: CITY OF NELSON APPLICANT (Respondent) AND: TARYN JOY MARCHI RESPONDENT (Appellant) ______________________________________________ MEMORANDUM OF ARUMENT OF THE RESPONDENT (Pursuant to Rule 27 of the Rules of the Supreme Court of Canada) ______________________________________________ DAROUX LAW CORPORATION MICHAEL J. SOBKIN 1590 Bay Avenue 33 Somerset Street West Trail, B.C. V1R 4B3 Ottawa, ON K2P 0J8 Tel: (250) 368-8233 Tel: (613) 282-1712 Fax: (800) 218-3140 Fax: (613) 288-2896 Danielle K. Daroux Michael J. Sobkin Email: [email protected] Email: [email protected] Counsel for the Respondent, Taryn Joy Marchi Agent for Counsel for the Respondent MURPHY BATTISTA LLP #2020 - 650 West Georgia Street Vancouver, B.C. V6B 4N7 Tel: (604) 683-9621 Fax: (604) 683-5084 Joseph E. Murphy, Q.C. Email: [email protected] Counsel for the Respondent, Taryn Joy Marchi ALLEN / MCMILLAN LITIGATION COUNSEL #1550 – 1185 West Georgia Street Vancouver, B.C. V6E 4E6 Tel: (604) 569-2652 Fax: (604) 628-3832 Greg J. Allen Tele: (604) 282-3982 / Email: [email protected] Liam Babbitt Tel: (604) 282-3988 / Email: [email protected] Counsel for the Applicant, City of Nelson 1 PART I – OVERVIEW AND STATEMENT OF FACTS A. Overview 1. The applicant City of Nelson (“City”) submits that leave should be granted because there is lingering confusion as to the difference between policy and operational decisions in cases of public authority liability in tort. It cites four decisions in support of this proposition. None of those cases demonstrate any confusion on the part of the lower courts.
    [Show full text]
  • Torts Mnemonics
    TORTS MNEMONICS 1) Torts are done IN SIN: I – INTENTIONAL harm to a person (e.g., assault, battery, false imprisonment, or the intentional infliction of emotional harm) N – NEGLIGENT conduct causing personal injury, wrongful death, or prop damage S – STRICT tort liability I – INTENTIONAL harm to property (e.g., trespass, conversion, or tortious interference with a contract) N – NUISANCE 2) Tortious conduct makes you want to SING: S – STRICT tort liability I – INTENTIONAL conduct N – NEGLIGENT conduct G – GROSS negligence a/k/a reckless conduct 3) A D’s FIT conduct is unreasonable/negligent when P was within the foreseeable zone of danger: F – FAILURE to take reasonable precautions in light of foreseeable risks I – INADVERTENCE T – THOUGHTLESSNESS 4) To establish a negligence claim, P must mix the right DIP: D – DUTY to exercise reasonable care was owed by the D to the injured P and the D breached this duty (for a negligence claim the duty is always to conform to the legal standard of reasonable conduct in light of the apparent risks) I – Physical INJURY to the P or his property (damages) P – P’s injuries were PROXIMATELY caused by the D’s breach of duty 5) A parent is liable only for the torts of a SICK child: S – in an employment relationship where a child commits a tort, while acting as a SERVANT or agent of the parent I – where the parent entrusts or knowingly leaves in the child’s possession an INSTRUMENTALITY that, in light of the child’s age, intelligence, disposition and prior experience, creates an unreasonable risk of harm to
    [Show full text]
  • The Last Clear Chance"
    St. John's Law Review Volume 8 Number 1 Volume 8, December 1933, Number 1 Article 7 The Doctrine of "The Last Clear Chance" Harold V. Dixon Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ST. JOHN'S LAW REVIEW the entire recovery program of the administration under the N. R. A. (which is surely price fixing on a broader scale than is here at- tempted) is directly involved. That the Supreme Court should at- tempt to overthrow the entire recovery platform by an adverse ruling seems highly improbable. Whether it be due to public opinion or because the Court will willingly throw off its cloak of conservatism in the face of this national crisis, it is the writer's opinion that the Supreme Court will sustain these acts. Changed conditions and circumstances require new remedies. A rule once sound under certain conditions may prove inadequate under different surroundings. If such were the attitude of the Court to- wards present emergency legislation, little difficulty would be had in rejecting old standards and seemingly binding authority to the contrary,37 and upholding a statute when the conditions so re- quire it. It should not be necessary to conclude whether or not the milk industry is so "affected with a public interest" as to justify price regulation, as that phrase has been employed in the past.
    [Show full text]
  • The Effect of Pennsylvania's Comparative Negligence Statute on Traditional Tort Concepts and Doctrines
    Volume 24 Issue 3 Article 3 1979 The Effect of Pennsylvania's Comparative Negligence Statute on Traditional Tort Concepts and Doctrines Walter J. Timby Jr. Michael J. Plevyak Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Torts Commons Recommended Citation Walter J. Timby Jr. & Michael J. Plevyak, The Effect of Pennsylvania's Comparative Negligence Statute on Traditional Tort Concepts and Doctrines, 24 Vill. L. Rev. 453 (1979). Available at: https://digitalcommons.law.villanova.edu/vlr/vol24/iss3/3 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Timby and Plevyak: The Effect of Pennsylvania's Comparative Negligence Statute on Tr THE EFFECT OF PENNSYLVANIA'S COMPARATIVE NEGLIGENCE STATUTE ON TRADITIONAL TORT CONCEPTS AND DOCTRINES WALTER J. TIMBY, JR.f MICHAEL J. PLEVYAKtI I. INTRODUCTION: "FURNISHING THE SCALES TO WEIGH WRONGDOING" It is an incontestable principle that where the injury com- plained of is the product of mutual or concurring negligence, no action for damages will lie. The parties being mutually at fault, there can be no apportionment of the damages. The law has no scales to determine in such cases whose wrong-doing weighed most in the compound that occasioned the mischief.' A S IF TO RESPOND, however belatedly, to this quotation by former Justice Woodward of the Supreme Court of Pennsylvania, the scales to determine wrongdoing* were furnished by the Pennsyl- vania Legislature some 121 years later when that body, during its 160th session, enacted a statute establishing the doctrine of compara- tive negligence in actions for injuries due to negligence.
    [Show full text]
  • South Carolina Damages Second Edition
    South Carolina Damages Second Edition TABLE OF CONTENTS PART I DAMAGES IN GENERAL Chapter 1 - DAMAGES IN GENERAL ....................................... 1 A. Necessity of Damages In Actions At Law . 1 1. Actions at Law Versus Actions in Equity . 2 2. Recovery is Premised on the Existence of Damages . 2 3. Restrictions on the Right to Recover Damages . 3 B. Types of Damages and the Purposes They Serve . 4 1. Compensatory Damages ..................................... 4 2. Nominal Damages .......................................... 5 3. Punitive Damages .......................................... 6 C. Proof Required for Recovery of Damages . 6 1. Actual Damages............................................ 6 2. Nominal Damages .......................................... 9 D. New Trial Nisi, New Trial Absolute, and the Thirteenth Juror . 10 PART II COMPENSATORY DAMAGES Chapter 2 - SOUTH CAROLINA MODIFIED COMPARATIVE NEGLIGENCE ......... 15 A. Introduction .................................................. 15 B. Contributory Negligence as a Total Bar to Recovery . 16 1. Assumption of the Risk ..................................... 17 2. Last Clear Chance Doctrine ................................. 19 3. Concepts Clouded by the Adoption of Comparative Fault . 19 C. Adoption of Comparative Negligence: Reducing Rather Than Barring Recovery ......................................... 19 1. Apportionment of Responsibility . 20 i Table of Contents 2. Multiple Defendants ....................................... 20 3. Computation of Damages ..................................
    [Show full text]
  • Vanderbilt Law Review Comment
    Vanderbilt Law Review Volume 21 Issue 6 Issue 6 - November 1968 Article 7 11-1968 Comment John W. Wade Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Torts Commons Recommended Citation John W. Wade, Comment, 21 Vanderbilt Law Review 938 (1968) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol21/iss6/7 This Comment is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW [ VOL,. 21 Comment John W. Wade* I. JUDIClAL PRECEDENTS FOR ADOPTING A RULE OF COMPARATIVE NEGLIGENCE The majority opinion in the Illinois Supreme Court held that if a change was to be made, the task was for the legislature, not the court. The five in the majority were not ready to deliver an opinion like that in MacPherson, Henningsen, Greenman.' If they had, there is real reason to believe that a similar consequence of an immediate and substantial judicial following would have developed. Without saying so, they seemed to be influenced by the thought that they would be complete pioneers in uncharted territory, with no precedents to rely upon or to interpret. Are there any judicial precedents? Yes-quite a number-all rele- vant, but in varying degrees and in differing respects. Some courts have adopted a form of comparative negligence. The leading example is Tennessee with its judicially created doctrine of remote contributory negligence, which is actually a form of com- parative negligence, though the Tennessee Supreme Court has fre- quently denied it.2 The essential difference between the Tennessee rule and ordinary comparative negligence is that in the latter, damages are mitigated or diminished in accordance with the relative degrees of negligence of the parties, while in the former, they are diminished in accordance with the relative closeness of the causal connection.
    [Show full text]
  • Intentional Torts
    Torts INTENTIONAL TORTS Intent ‐act intending to produce the harm OR ‐know that harm is substantially certain to result Battery ‐requires dual intent: 1) Act intending to cause harm or offensive contact with person (what is offensive?) 2) harmful contact directly or indirectly results *Vosburg rule used to be only need to intend contact *doesn’t have to know the full extent of the possible harm, just know that it is likely to cause harm *can be liable for any damages, unforeseen or not *thin shin rule *Transferred intent ‐ need not be person who def intended to harm ‐criminal negligence vs. tort negligence ‐small unjustifiable risk vs. big risk, gross deviation from std of care Intentional Infliction of Emotional Distress 1) Intent to harm (can be imputed from facts) Wilkinson v. Downton (93) o Practical joke where guy tells woman her husband badly injured. o Rule: Such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstance upon any but an exceptionally indifferent person, and therefore an intent to produce such an effect must be imputed. 2) Outrageous Conduct RESTATEMENT 2 ‐ 46 ‐ outrageous conduct causing severe emotional distress ‐extreme or outrageous conduct ‐ who is deciding? JURY ‐intentionally or recklessly causes severe emotional distress ‐liable for emotional distress and/or bodily harm ‐liable to family members who are present regardless of bodily harm ‐liable to third parties present (not family) IF distress results in bodily harm ‐really does have to be OUTRAGEOUS‐ beyond all decency (Jury decides) ‐expansion from battery to IIED shows expansion of tort law ‐serious threats to physical well‐being are outrageous -The extreme and outrageous character might arise from knowledge that the other is peculiarly susceptible to ED by reason of a physical or mental condition or peculiarity (Amish guy).
    [Show full text]
  • Tort Law - the Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence - Torres V
    Volume 30 Issue 2 Summer 2000 Summer 2002 Tort Law - The Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence - Torres v. El Paso Electric Company Cynthia Loehr Recommended Citation Cynthia Loehr, Tort Law - The Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence - Torres v. El Paso Electric Company, 30 N.M. L. Rev. 325 (2002). Available at: https://digitalrepository.unm.edu/nmlr/vol30/iss2/8 This Notes and Comments is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr TORT LAW-The Doctrine of Independent Intervening Cause Does Not Apply in Cases of Multiple Acts of Negligence-Torres v. El Paso Electric Company I. INTRODUCTION In Torres v. El Paso Electric Company,' the New Mexico Supreme Court abolished the doctrine of independent intervening cause for multiple acts of negligence, including where a defendant and a plaintiff are both negligent.2 An independent intervening cause is "a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could not have been reasonably foreseen."3 The Torrescourt concluded that the independent intervening cause instruction would "unduly emphasize" a defendant's attempts to shift fault and was "sufficiently repetitive" of that for proximate cause that
    [Show full text]
  • Last Clear Chance Doctrine Was Misplaced, Because James’S Negligence Was Ongoing at the Time He Was Struck
    PRESENT: All the Justices GINA COUTLAKIS, PERSONAL REPRESENTATIVE OF JAMES COUTLAKIS, DECEASED, AND EXECUTOR OF HIS ESTATE, OPINION BY v. Record No. 160277 JUSTICE CLEO E. POWELL March 9, 2017 CSX TRANSPORTATION, INC., ET AL. FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Theodore J. Markow, Judge Designate Gina Coutlakis (“Gina”) appeals the judgment of the trial court sustaining a demurrer on the basis that her action was barred because her husband, James Coutlakis (“James”), was contributorily negligent. I. BACKGROUND As the present case was decided on demurrer, “we recite the facts contained in the pleadings and all reasonable inferences therefrom in the light most favorable to the plaintiff.” Martin v. Ziherl, 269 Va. 35, 38, 607 S.E.2d 367, 368 (2005). So viewed, the record demonstrates that, on September 4, 2015, Gina filed her third amended complaint against CSX Transportation, Inc. (“CSX”), Brian Crowder (“Crowder”), and Daniel Epstein (“Epstein”) (collectively the “Appellees”), alleging that their negligence resulted in the death of James. In her complaint, Gina alleged that, on July 6, 2013, James was walking adjacent to railroad tracks owned by CSX. At the time, James was listening to music on his cellular telephone through earbuds. As a result, James was unaware of the fact that a CSX train was approaching him from behind. Gina further alleged that Crowder, the train’s conductor, and Epstein, the train’s engineer, had a chance to avoid the accident, as they saw James while he was several hundred yards in front of the train. However, as James continued to walk along the tracks, showing no sign that he was aware of the approaching train, neither Crowder nor Epstein took any steps to alert James or avoid a collision.
    [Show full text]
  • The Last Clear Chance Doctrine in Louisiana - an Analysis and Critique Scotty G
    Louisiana Law Review Volume 27 | Number 2 February 1967 The Last Clear Chance Doctrine in Louisiana - An Analysis and Critique Scotty G. Rozas Repository Citation Scotty G. Rozas, The Last Clear Chance Doctrine in Louisiana - An Analysis and Critique, 27 La. L. Rev. (1967) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol27/iss2/6 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. COMMENTS THE LAST CLEAR CHANCE DOCTRINE IN LOUISIANA- AN ANALYSIS AND CRITIQUE The doctrine of last clear chance, stated broadly, is that the negligence of the plaintiff does not preclude a recov- ery for the negligence of the defendant where it appears that the defendant by exercising reasonable care and pru- dence might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence.' The last clear chance doctrine 2 has grown to play a prominent role in the law of negligence since its birth in the mid-nineteenth century. It has been applied with increasing frequency, and although originally created to avoid some of the rigidity and harshness of the contributory negligence rule, 3 it has itself be- come plagued with technicalities, rigidity and misuse.4 The doctrine, recognized by practically all states,5 now knows almost as many variations as there are states that apply it.o This Com- ment traces the history of the doctrine, examines its develop- ment in Louisiana, investigates its present state and offers some criticism of the doctrine itself and its application in certain cases.
    [Show full text]
  • Virginia Model Jury Instructions – Civil
    Virginia Model Jury Instructions – Civil Release 20, March 2020 NOTICE TO USERS: THE FOLLOWING SET OF UNANNOTATED MODEL JURY INSTRUCTIONS ARE BEING MADE AVAILABLE WITH THE PERMISSION OF THE PUBLISHER, MATTHEW BENDER & COMPANY, INC. PLEASE NOTE THAT THE FULL ANNOTATED VERSION OF THESE MODEL JURY INSTRUCTIONS IS AVAILABLE FOR PURCHASE FROM MATTHEW BENDER® BY WAY OF THE FOLLOWING LINK: https://store.lexisnexis.com/categories/area-of-practice/civil-procedure- 154/virginia-model-jury-instructions-civil-skuusSku7357 Matthew Bender is a registered trademark of Matthew Bender & Company, Inc. Instruction No. 2.000 Preliminary Instructions to Jury Members of the jury, the order of the trial of this case will be in four stages: 1. Opening statements 2. Presentation of the evidence 3. Instructions of law 4. Final argument After the conclusion of final argument, I will instruct you concerning your deliberations. You will then go to your room, select a foreperson, deliberate, and arrive at your verdict. Opening Statements The plaintiff's attorney may make an opening statement outlining the plaintiff's case. Then the defendant's attorney also may make an opening statement. Neither side is required to do so. Presentation of the Evidence Following the opening statements, the plaintiff will introduce evidence, after which the defendant then has the right to introduce evidence (but is not required to do so). Rebuttal evidence may then be introduced if appropriate. Instructions of Law At the conclusion of all evidence, I will instruct you on the law which is to be applied to this case. Final Argument Once the evidence has been presented and you have been instructed on the law, then the attorneys may make their closing arguments.
    [Show full text]