Who had last clear chance?

The widow of a Richmond businessman who was struck by a train as he walked along railroad tracks using earbuds can pursue a lawsuit over his death, thanks to a new ruling by the Supreme Court of Virginia.

The high court dusted off a concept many lawyers haven’t thought about since law school: the last clear chance. The court itself hasn’t considered the doctrine since the Clinton Administration.

A circuit court will have a chance to revisit the theory. In Coutlakis v. CSX Transportation Inc. (VLW 017-6-017), decided March 9, the high court reversed a dismissal of the case and remanded the lawsuit for further proceedings.

James Coutlakis was mourned as a civic-minded resident of the Boulevard area of Richmond when he died in the July 2013 accident. He had once served as president of the Boulevard Association.

Coutlakis was struck and killed by a CSX train as he walked along the tracks under the Powhite Parkway bridge over the James River, according to news accounts at the time.

His family told the Richmond Times-Dispatch he enjoyed listening to radio podcasts as he walked, which may have prevented him from hearing the train until it was too late.

Widow Gina Coutlakis sued the railroad and its two-person train crew, claiming the crew should have done more to prevent the accident.

Even though the railroad contended James Coutlakis’ own negligence led to his death, the widow said it was the railroad employees who had the last clear chance to avoid the incident.

A trial judge rejected the use of the “last clear chance” doctrine and dismissed the lawsuit.

Trial judge dismissal

The high court summarized the allegations of the Coutlakis lawsuit: The victim was walking adjacent to the train tracks listening to music on earbuds, unaware that a train was approaching from behind.

The train crew saw James as he walked several hundred yards in front of the train, showing no sign that he realized his peril. Nevertheless, the suit alleged that neither the engineer nor conductor took any steps to alert James or to avoid a collision.

The plaintiff’s account may be at odds with reports from shortly after the accident. An account, relayed to the widow, said the crew sounded the horn, but that James could not get out of the way in time. The Supreme Court opinion makes no mention of any such warning by the train crew.

In any event, the lawsuit claimed that James was struck by a part of train that extended out from the body of the train, causing fatal injury.

CSX alleged that James’ negligence was self-evident and, because his negligence continued up to the point of contact, the last clear chance doctrine could not come into play.

Retired Richmond Circuit Judge T.J. Markow sustained the railroad’s demurrer and dismissed the lawsuit.

On appeal, the Supreme Court agreed that Gina Coutlakis had presented sufficient facts to apply the last clear chance doctrine.

Precedent from 1998 and 1955

The court had not addressed the last clear chance doctrine since 1998. The closest analogous case was from 1955, in which a victim had unwittingly placed himself in the path of a truck.

The court has recognized only two types of plaintiff eligible for the doctrine: the helpless plaintiff and the inattentive plaintiff.

James Coutlakis was an inattentive plaintiff under the court’s definition: one who has negligently placed himself in peril from which he could remove himself, but is unconscious of the peril.

Under such a situation, a defendant is liable only if he realized or ought to have realized the peril in time to avoid the accident through reasonable care.

“There can be little doubt” the allegations of the Coutlakis lawsuit met that standard, the court said.

Relying on older precedent, CSX said an exception applied, because James’ negligence continued up to the point of the accident. Older cases cited by the railroad held that the doctrine did not apply when both parties are guilty of negligence continuing up to the time of the accident.