ANALYSIS OF MARCH 9, 2017 SUPREME COURT OPINION
(Posted March 9, 2017) The Supreme Court of Virginia today takes up the last-clear-chance doctrine for the first time since the Twentieth Century. In Coutlakis v. CSX Transportation, the justices consider a wrongful-death suit brought by the widow of a man who was killed by a train that struck him from behind as he walked alongside train tracks.
How can someone not know a train is coming, you ask? After all, anyone who’s been near a railroad crossing as a train goes by can attest that the noise is thunderous. But the decedent in this case had effectively made himself deaf to his environment: he was listening to music through earbuds.
His widow filed a wrongful-death suit, claiming that the train’s conductor and engineer saw the man and were able to appreciate his peril far enough in advance to do something about it – presumably to stop the train, or at least sound the train’s whistle – and avoid this tragedy.
The trial court sustained the railroad’s demurrer, ruling that the pleading established the decedent’s contributory negligence as a matter of law. It also ruled that last clear chance didn’t apply because the decedent’s negligence continued right up to the moment of the injury, so the railroad didn’t have the “last” chance.
This ruling generates a unanimous reversal, as the Supreme Court concludes that the complaint states a claim that could support a plaintiff’s verdict – depending on the eventual proof, of course. The court lists the only two plaintiffs who may take advantage of the last-clear-chance doctrine: the helpless plaintiff and the inattentive plaintiff.
A helpless plaintiff is someone who negligently puts himself into a predicament that he cannot extract himself from. That’s not our decedent; he was of the second kind, an inattentive plaintiff. The elements of proof for these two are slightly different; for inattentive plaintiffs, the doctrine applies only if the defendant “saw the plaintiff and realized, or ought to have realized, his peril in time to avert the accident by using reasonable care.” The widow alleged each of these things, so the pleading was sufficient to withstand demurrer.
The railroad evidently leaned heavily on the continuing-negligence caselaw, but the court rules today that that won’t bar recovery as long as the defendant actually knew of the victim’s peril in time to prevent the injury.
Justice McClanahan files a short concurring opinion. At first glance, it appears to state, “I agree that you survive demurrer, but good luck actually proving all this stuff to a jury.” But her point is more nuanced than that. She notes that in the past, the court has declined to extend helpless-plaintiff status to plaintiffs who become voluntarily intoxicated. She notes that the court has yet to decide whether to treat similarly an inattentive victim whose “inattentiveness was produced by voluntary obstruction of his senses.” That’s an eminently reasonable observation, and if the plaintiff succeeds in getting a judgment, this is an unmistakable indication from her Honor that the railroad might want to make that Assignment 1 in a subsequent petition for appeal.