was panicked following a robbery and was trying to quickly reach a phone to call the police.
Based on the imminence of the situation, Pam will argue that her conduct did not fall below the
standard of care she owed to herself.
However, Diner’s argument will likely prevail.
Therefore, Pam was contributorily negligent.
Last Clear Chance
To avoid the harsh effect of plaintiff’s contributory negligence, some jurisdictions will hold that
a plaintiff is not barred from recovery where a defendant had the last clear chance to avoid the
accident just before it occurred, but failed to do so.
Diner had the last clear chance of preventing Pam’s trip and fall in the parking lot in that it could
have posted a warning or cordoned off the pothole to prevent Pam from tripping on the pothole.
Diner’s act of doing nothing about the pothole resulted in Pam’s tripping accident.
Thus, Diner had the last clear chance to prevent the injury to Pam.
The doctrine of comparative negligence apportions the relative negligence or fault, i.e.,
blameworthiness, of the plaintiff and defendant, and reduces plaintiff’s recovery of damages
As discussed, Pam ran across the Diner’s parking lot and tripped on the pothole as a result of her
Diner will argue that since Pam’s conduct fell below the reasonable person
standard of care, the court should apportion fault between Pam and Diner, and render judgment
Therefore, comparative negligence is a valid defense.
Assumption of Risk
Diner will argue since Pam was running in the parking lot and not looking where she was going
she had knowledge that she could trip or fall.
Diner will further argue that by running to get help
while not seeing a pothole that was readily visible, Pam had comprehension and an appreciation
of the danger and voluntarily elected to encounter that danger.
However, Pam was not aware of the pothole in Diner’s parking lot.
She never saw it because of
her panicked state following the robbery.
Without knowledge of the dangerous condition, Pam
had no appreciation of the danger.
Hence, she could not assume the risk of such danger.