Kenison v. Schaeffer

OPINION RICHMOND, Judge. The sole issue on this appeal is whether the court erred in refusing to give the appellants’ requested instruction on last clear chance in a case arising out of the collision of two moving automobiles at an intersection. We affirm. The accident occurred at Ajo Way and Mission Road. The evidence is viewed to support appellants' request. Schneider v. Macari, 111 Ariz. 483, 533 P.2d 540 (1975). Appellant Floyd Kenison approached the intersection on Ajo at about 40 miles per hour. The light was green. Appellee Robert Schaeffer, a deputy sheriff, proceeded into the intersection from Mission against the red light after turning on his siren and lights. Kenison testified that he heard “a blip of a siren” but did not see the deputy’s car until immediately before impact. The deputy testified that he thought all traffic had stopped. He did not see Kenison’s vehicle until the accident occurred. An accident reconstruction expert testified that the last time Kenison could have [187] avoided the accident was 1.9 seconds before impact, and the deputy could still have avoided the accident three-quarters of a second later. Appellants contend that these facts come within the scope of the Restatement 2d of Torts, § 479, which provides: A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, (a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and (b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he (i) knows of the plaintiff’s situation and realizes or has reason to realize the peril involved in it or (ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise. This section applies only if, immediately prior to the accident, Kenison was helpless and the deputy should have discovered his peril in time to avoid it by exercising due care. McCurdy v. Stage, 124 Ariz. 151, 602 P.2d 819 (App.1979). Kenison was not helpless until 1.9 seconds before the accident. Although the deputy had the last chance to avoid the accident at that point, he had only three-quarters of a second to react before the accident became inevitable. The last clear chance doctrine implies sufficient time to think, appreciate and act, Catalano v. Lewis, 90 N.M. 215, 561 P.2d 488 (1977), and should not be applied to fast-happening accidents. Aegerter v. Duncan, 7 Ariz.App. 239, 437 P.2d 991 (1968). With only three-quarters of a second in which to act after Kenison became helpless, the deputy did not have a “clear” opportunity to avoid the accident. See Aegerter, supra; also Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287 (1956), overruled on other grounds, Crane v. Banner, 93 Idaho 69, 455 P.2d 313 (1969) (no last clear chance existed where the victim’s peril became apparent only six-tenths to seven-tenths of a second before the accident). Affirmed. HOWARD, J., concurs.