No Last Clear Chance Instruction For Dash Across Parkway

A Blue Ridge Parkway pedestrian who tried unsuccessfully to cross in front of an approaching car — rather than waiting in the other lane of travel — was properly denied use of the last-clear-chance doctrine, the Court of Appeals has ruled in an unpublished opinion.
The holding means the pedestrian will recover nothing from the motorist who struck him in a 2001 Buncombe County accident. A jury ruled both the motorist and the pedestrian were negligent.
The doctrine of last clear chance could have overcome the jury’s finding of contributory negligence, and the pedestrian asserted the motorist had the last opportunity to avoid the accident. However, the trial judge granted a directed verdict for the motorist on that issue.
The Appeals Court affirmed, saying the doctrine did not apply because the pedestrian was in control of the danger he faced and simply chose to take a risk.
The case is Pearce v. Rosenblum (North Carolina Lawyers Weekly No. 05-16-0128, 6 pages). Judge Patricia Timmons-Goodson wrote the opinion.
Background
The 2001 accident occurred at the Beaverdam Gap Overlook. The plaintiff, Ellison W. Pearce, parked on the south side of the parkway, then walked across the road to take pictures.
As he returned to his car, Pearce stopped and checked for traffic before crossing the road. Seeing nothing coming, he crossed to the center line, then stopped to check for traffic in the southbound lane and saw three cars approaching.
Pearce ran across the southbound lane in front of the cars. He had almost cleared the road when his trailing leg was hit by Robert F. Rosenblum.
Pearce brought a negligence claim. Rosenblum and the car’s owner raised the defense of contributory negligence. In turn, Pearce alleged that the car’s driver had the last clear chance to avoid the accident.
At a 2003 jury trial, the trial judge granted a directed verdict for the defendants on the issue of last clear chance.
The jury found both parties negligent, barring recovery for the plaintiff.
The plaintiff appealed the trial judge’s ruling on last clear chance, but the appeals panel affirmed.
Under the doctrine of last clear chance, a negligent pedestrian can still recover despite his contrib by showing:
* He negligently placed himself in a position of peril.
* The motorist knew or could have discovered the pedestrian’s perilous position and his incapacity to escape from it.
* The motorist had the time and means to avoid injury to the pedestrian.
* The motorist negligently failed to use the available time and means to avoid injury to the pedestrian.
The problem in Pearce: the plaintiff could not show he was in helpless or inadvertent peril at the time of the accident, the court said.
According to the record, Pearce testified that when he saw the cars coming, he thought to himself: “You’re going to make it. Run.”
Asked whether he could have avoided the accident by simply staying in the northbound lane, Pearce said he had not taken the time to see whether there was traffic on his side of the road. But he acknowledged Rosenblum would not have hit him had he stayed put.
Said the court, “Plaintiff was not in helpless peril because he was not in a position from which he was powerless to extricate himself. Plaintiff could have checked the northbound lane for traffic, and, if there was no traffic, he could have retreated into the northbound lane in order to avoid being struck by the car that Rosenblum was driving.
“We conclude that plaintiff was at all times in control of the danger and simply chose to take the risk of running in front of the car that Rosenblum was driving.”
Asheville attorney John C. Hensley Jr., who represented the plaintiff, argued that the defendant could have avoided the accident by slowing slightly or moving slightly out of his lane.
“I argued that surely they had the means and opportunity to avoid this,” he said. “But the court never reached that because they said we never met the first element of last clear chance.”
The court applied an overly restrictive definition of “helpless peril,” Hensley said.
“The court’s decision was based on one thing said at trial that suggested my client could have stayed where he was or stepped back and been fine,” Hensley said. “But if you consider all the evidence, you’d realize that would require him to make an absolute perfect decision in a split second. I think that’s a high burden for any plaintiff to bear.”
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