LAST CLEAR CHANCE AFTER THIRTY YEARS UNDER THE APPORTIONMENT STATUTES
AbstractIt is almost as if, in cases in which the courts must apportion losses between two wrongdoers, the common law changed the scales of justice into a see-saw. The last-chance doctrine was invented as an escape from the harshness of the contributory negligence bar to recovery for the plaintiff. The result was a zero-sum game in which the court allocated the entire loss to either the plaintiff or the defendant at its discretion. Writing fifteen years earlier, M.M. MacIntyre optimistically began tolling the knell of the parting doctrine, encouraged by contributory negligence apportionment statutes that provided a much more complete and refined method of accomplishing the purposes that inspired last clear chance in the first place. Though some courts, in light of these statutes, have apportioned damages without reference to the last clear chance doctrine, the Supreme Court of Canada has shown a reluctance to abandon it. . The author reminds us that, with the last clear chance doctrine, the search for who “caused” the harm was only a crude root-about for which of the two parties, the plaintiff or the defendant, was guilty of the greater negligence. Once that is clearly understood, retention of the last chance doctrine in contributory negligence cases after the apportionment statutes becomes absurd.
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