MORSE AUTO RENTALS, INC., A CORPORATION, CORT PACKING CORP. OF FLORIDA, INC., A CORPORATION, AND WILLIAM HEATH, PETITIONERS,
v.
SALLY KRAVITZ AND AARON KRAVITZ, RESPONDENTS
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The Florida Supreme Court resolved a conflict between two District Courts of Appeal regarding the doctrine of last clear chance by holding that this doctrine cannot apply when both parties are guilty of concurrent negligence. The Court clarified that last clear chance requires the plaintiff's negligence to terminate in a position of peril from which they cannot extricate themselves before the defendant's negligent conduct.
The doctrine of last clear chance is not applicable when both parties are guilty of concurrent negligence. The trial court correctly refused to give the requested jury charge because the evidence showed Mrs. Kravitz's negligent inattention continued until the moment of impact, and she was in a perilous position from which she could have extricated herself by exercising due care. When both parties are concurrently negligent, there is no reason to prefer one party's negligence over the other.
“instead of actually seeing the plaintiff's dangerous situation, the defendant merely could have seen it and appreciated it, had the defendant used due care, the plaintiff can invoke the doctrine only if the plaintiff's negligence terminated, or culminated in a stituation of peril from which the exercise of due care on the plaintiff's part would not thereafter extricate him, and the defendant thereafter could have avoided injuring the plaintiff by exercising reasonable care, but failed to do so.”
Establishes the required elements for last clear chance: plaintiff's negligence must terminate in an inescapable position of peril before defendant's negligence can trigger the doctrine
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Join FLexlaw to unlock all legal intelligenceSally Kravitz was struck by a vehicle operated by one of the petitioners. The evidence showed that Mrs. Kravitz was guilty of negligent inattention (b…
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Petitioners contend that the decision of the District Court of Appeal, Third District, reported at 166 So.2d 619 is in conflict with the decision in Connolly v. Steakley, Fla.App.1964, 165 So.2d 784. Both decisions deal with the doctrine of last clear chance.
In the Connolly decision the District Court of Appeal, Second District, correctly held that if
“ * * * instead of actually seeing the plaintiff’s dangerous situation, the defendant merely could have seen it and appreciated it, had the defendant used due care, the plaintiff can invoke the doctrine only if the plaintiff’s negligence terminated, or culminated in a stituation of peril from which the exercise of due care on the plaintiff’s part would not thereafter extricate him, and the defendant thereafter could have avoided injuring the plaintiff by exercising reasonable care, but failed to do so.”
In the subject decision, the District Court of Appeal, Third District, held that the trial court erred in refusing to give a charge on last clear chance, saying that from the evidence the “ * * * jury could have concluded that the driver should have seen Sally Kravitz before he was within 30-35 feet of her in time to avoid the accident.” Earlier in its opinion that court stated that the appellees, petitioners here, contended that Mrs. Kravitz was indifferent to approaching traffic and walked in front of the appellee-petitioner’s vehicle, making it impossible for the driver to avoid the accident. In its opinion the court neither rejects the appellee-petitioner’s contention that Mrs. Kravitz was negligently inattentive nor otherwise indicates that her negligence had terminated in a position of peril from which she could not extricate herself.
*818It appears, therefore, that the opinion of the district court in this case authorizes the application of last clear chance in a situation in which both parties are guilty of concurrent negligence, whereas the decision in Connolly, supra, holds to the contrary. This satisfies the question of jurisdictional conflict.
We have carefully reviewed the evidence in the record. It shows that Mrs. Kravitz was guilty of negligent inattention which continued to the moment she was struck. It does not show that her negligence terminated leaving her in a position of peril from which she could not extricate herself. The evidence might permit a finding by a jury that the defendant driver was negligent in not having discovered Mrs. Kravitz in a perilous position in time to avoid the accident, but it shows no other negligence on his part.
At best, then, the evidence shows that both plaintiff and defendant were guilty of concurrent negligence. In such a case there is no reason to prefer the negligence of one party over the other. The doctrine of last clear chance is not applicable in such a case and the trial judge correctly refused to give the requested charge in this one, and the District Court of Appeal committed error in reversing him.
For the reasons above expressed the decision of the district court is quashed with directions to remand the cause to the trial court for entry of a judgment in accordance with the verdict of the jury.
THORNAL, C. J., and ROBERTS, O’CONNELL and CALDWELL, JJ., concur.
DREW, J., dissents with Opinion.
ERVIN, J., dissents and agrees with DREW, J.
(dissenting):
See my dissent in Connolly v. Steakley, Fla., 197 So.2d 537, this day filed.
ERVIN, J., concurs.
DREW, Justice
(dissenting):
See my dissent in Connolly v. Steakley, Fla., 197 So. 2d 537, this day filed.
ERVIN, J., concurs.
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Perdue v. Copeland, 220 So. 2d 617 (Fla. 1969)…over the peril of the plaintiff. It is generally recognized that there is no valid reason to prefer the plaintiff in such situations.” The specially concurring opinion in the Connolly case was cited in Morse Auto Rentals, Inc. v. Kravitz, Fla.1967, 197 So. 2d 817, and in Bethel Apostolic Temple v. Wiggen, Fla.1967, 200 So. 2d 797, both of which were pedestrian-automobile collision cases. In the decision here reviewed the appellate court completely ignored the “concur [*620] ring negligence” rule, contrary t…
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Rickie Potetti v. BEN LIL, Inc., 213 So. 2d 270 (Fla. 3d DCA 1968)…rror, under the facts involved herein, in the refusal of the trial judge to give an instruction on the doctrine of last clear chance. See Bethel Apostolic Temple v. Wiggen, Fla.1967, 200 So. 2d 797, and Morse Auto Rentals, Inc. v. Kravitz, Fla.1967, 197 So. 2d 817. The judgment herein appealed is, therefore, Affirmed. . R.C.P. 1.470(c); Stupp v. Cone Brothers Contracting Company, Fla.App.1961, 135 So. 2d 457; Wigginton, New Florida Common Law Rules, 3 U.Fla.L.Rev. 1.29 (1950). . Smith v. Peninsular Insura…
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Denver Elmo Sanders v. Fla. E. Coast Ry. Co., 216 So. 2d 49 (Fla. 4th DCA 1968)…t the difference between life and death. This testimony was sufficient upon which to base a charge with reference to the last clear chance.” The appellee relies upon the opinion of the Supreme Court in Morse Auto Rentals, Inc. v. Kravitz, Fla.1967, 197 So. 2d 817, wherein it was held that the last clear chance doctrine would not apply in a situation where the plaintiff and defendant were guilty of mutual inattention. In the case before us, the fireman and engineer were attentive, but did nothing to reduce th…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Connolly v. Wiley C. Steakley, 165 So. 2d 784 (Fla. 2d DCA 1964)
- Kravitz v. Morse Auto Rentals, Inc., 166 So. 2d 619 (Fla. 3d DCA 1964)