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Virginia Supreme Court Puts Plaintiff’s Claim for Application of the Last Clear Chance Doctrine in Railroad Accident Back on Track.

Gina Coutlakis v. CSX Transportation, Inc.
No. 160277-CEP (Va. Mar. 9, 2017) The Supreme Court of Virginia

by Matthew S. Sarna, Law Clerk
Semmes, Bowen & Semmes (

Available at:

In Coutlakis v. CSK Transportation, Inc., No. 160277-CEP (Va. Mar. 9, 2017), the Virginia Supreme Court reversed the trial court’s dismissal of this case. This appeal arose from the Circuit Court for the City of Richmond’s granting Defendant’s demurrer and holding that Gina Coutlakis (“Plaintiff”) alleged insufficient facts in her personal injury action.

According to Plaintiff’s third amended complaint, on July 6, 2013, James Coutlakis (“James”) was listening to music on his phone through headphones while walking adjacent to railroad tracks owned by CSX. As a result, James was unaware of an approaching CSX train. The train struck James, killing him instantly. Plaintiff claimed that the train conductor and engineer had a chance to avoid the accident, but neither took any steps to alert James or avoid the collision. CSX demurred, arguing that James’s contributory negligence barred Plaintiff’s claim, and further asserted that any reliance on the last clear chance doctrine was misplaced. The court subsequently granted the Defendant’s demurrer.

On appeal, the Supreme Court of Virginia took a long look at the last clear chance doctrine (“Doctrine”) and whether it was applicable in the present case. The Court first recognized that under the Doctrine, there are two types of plaintiffs who may prevail: the “helpless plaintiff” and the “inattentive plaintiff,” who has “negligently placed himself in a situation of peril from which he is physically able to remove himself, but is unconscious of his peril.” Greear v. Noland Co., 197 Va. 223, 238 (1955). In the latter situation, “The defendant is liable only if he saw the plaintiff and realized, or ought to have realized, [the plaintiff’s] peril in time to avert the accident by using reasonable care.” Id. at 239.

Against Greear and the Doctrine, CSX argued that James’ negligence continued up to the point of the accident, making it a proximate cause of his injuries. CSX asserted, “The last clear chance doctrine does not supersede the principle of contributory negligence, meaning negligence on the part of the injured person which contributed as a proximate cause to his injury,” Id. at 327–38, is a tacit acknowledgment that Greear did not affect the continuing negligence rule. CSX further asserted that the Court had continued to recognize that “a negligent plaintiff may recover only if his negligence was a remote rather than a proximate cause of the accident.” Williams v. Harrison, 255 Va. 272, 276–77 (1998).

The Court disagreed, first stating that James’ continuing negligence did not bar the application of the Doctrine. The Court noted that there are certain circumstances where humane considerations warranting the avoidance of contributory negligence, as such a harsh and inevitable result, exist. See Jones v. Aluminum Window & Door Corp., 201 Va. 283, 290 (1959). Further, the Court cited Southern Ry. Co. v. Bailey, as analogous to the present situation, stating:

If, however, it appears that those in control of a train, in the discharge of their admitted duty to keep a reasonable outlook, discover… a person upon the track, and there be superadded any fact or circumstance brought home to their knowledge, sufficient to put a reasonable man upon his guard, that the person upon the track pays no heed to his danger and will take no step to secure his own safety, then the situation changes and the negligence of the person injured becomes the remote cause or mere condition of the accident, and the negligence of the railroad company the proximate cause, and there may be a recovery.

110 Va. 833, 846 (1910) (emphasis added).

In sum, contrary to CSX’s argument, the fact that James’ negligence continued up to the point of the accident, without further information, did not bar the application of the Doctrine. Plaintiff had alleged enough to lead a rational jury to conclude that James’s negligence was the remote cause of the accident, which could result in a finding that the Doctrine was applicable. Accordingly, the Court reversed the decision of the trial court and remanded the case for a trial on the merits.

Justice McClanahan wrote a brief concurring opinion, highlighting that the burden would be on the plaintiff at trial to prove each element of the Doctrine. Further the opinion noted in dicta that the Virginia Supreme Court had not yet had, but might, upon future appeal, have the occasion to consider whether an exception to the “helpless plaintiff” standard for voluntary incapacity could be applied to the “inattentive plaintiff” standard for a voluntary obstruction of his senses.