PRESENT: All the Justices

GINA COUTLAKIS, PERSONAL REPRESENTATIVE OF JAMES COUTLAKIS,
DECEASED, AND EXECUTOR OF HIS ESTATE,
                                             OPINION BY
v. Record No. 160277                  JUSTICE CLEO E. POWELL
                                             March 9, 2017
CSX TRANSPORTATION, INC., ET AL.

                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                           Theodore J. Markow, Judge Designate

          Gina Coutlakis (“Gina”) appeals the judgment of the trial court sustaining a demurrer on

the basis that her action was barred because her husband, James Coutlakis (“James”), was

contributorily negligent.

                                         I. BACKGROUND

          As the present case was decided on demurrer, “we recite the facts contained in the

pleadings and all reasonable inferences therefrom in the light most favorable to the plaintiff.”

Martin v. Ziherl, 269 Va. 35, 38, 607 S.E.2d 367, 368 (2005). So viewed, the record

demonstrates that, on September 4, 2015, Gina filed her third amended complaint against CSX

Transportation, Inc. (“CSX”), Brian Crowder (“Crowder”), and Daniel Epstein (“Epstein”)

(collectively the “Appellees”), alleging that their negligence resulted in the death of James. In

her complaint, Gina alleged that, on July 6, 2013, James was walking adjacent to railroad tracks

owned by CSX. At the time, James was listening to music on his cellular telephone through

earbuds. As a result, James was unaware of the fact that a CSX train was approaching him from

behind.

          Gina further alleged that Crowder, the train’s conductor, and Epstein, the train’s engineer,

had a chance to avoid the accident, as they saw James while he was several hundred yards in

front of the train. However, as James continued to walk along the tracks, showing no sign that
he was aware of the approaching train, neither Crowder nor Epstein took any steps to alert James

or avoid a collision. James was subsequently “struck by a part of the train that extended out

from the side of the body of the [t]rain which caused severe injuries to his head

and . . . shoulder,” killing him immediately.

       CSX, Crowder and Epstein collectively demurred, arguing that, even when viewed in the

light most favorable to Gina, James’s contributory negligence was evident on the face of the

complaint and, therefore, Gina’s claim was barred. The defendants further asserted that Gina’s

reliance on the last clear chance doctrine was misplaced, because James’s negligence was

ongoing at the time he was struck. After hearing argument on the matter, the trial court sustained

the demurrer.

       Gina appeals.

                                          II. ANALYSIS

       On appeal, Gina argues that the trial court erred in sustaining the Appellees’ demurrer.

According to Gina, her third amended complaint contained sufficient facts to support her

allegation that the last clear chance doctrine may apply to the present case and, therefore,

James’s contributory negligence did not require dismissal of her complaint. We agree.

                The purpose of a demurrer is to determine whether a [complaint]
                states a cause of action upon which the requested relief may be
                granted. A demurrer tests the legal sufficiency of facts alleged in
                pleadings, not the strength of proof. Accordingly, we accept as
                true all properly pled facts and all inferences fairly drawn from
                those facts. Because the decision whether to grant a demurrer
                involves issues of law, we review the circuit court's judgment de
                novo.

Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 356-57, 699 S.E.2d 483, 486-87 (2010)

(citations and internal quotation marks omitted).




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        At present, this Court has only recognized two types of plaintiff who may avail

themselves of the last clear chance doctrine. The first type of plaintiff, the helpless plaintiff, is a

plaintiff who “negligently placed himself in a situation of peril from which he is physically

unable to remove himself.” Greear v. Noland Co., 197 Va. 233, 238, 89 S.E.2d 49, 53 (1955).

In the case of a helpless plaintiff, “the defendant is liable if he saw, or should have seen, [the

plaintiff] in time to avert the accident by using reasonable care.” Id.

        The present case deals with the second type of plaintiff, the inattentive plaintiff. An

inattentive plaintiff is one 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.” Id. at 238-39, 89 S.E.2d

at 53. In the case of an inattentive plaintiff, “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, 89 S.E.2d at 53.

        There can be little doubt that, under Greear, Gina’s third amended complaint contains

sufficient allegations to survive demurrer. 1 Notably, Gina alleged that James was unaware of his

peril 2, that Crowder and Epstein saw James, that Crowder and Epstein knew or should have



        1
          Indeed, one would be hard pressed to distinguish the facts of Greear from the facts pled
by Gina in her third amended complaint. In both cases, it was alleged that the injured parties
negligently placed themselves in a position of danger by positioning themselves in a location
where they could be struck by a passing truck (Greear) or a train (present case); they were
physically capable of removing themselves from harm’s way, but they were unconscious of their
peril; the defendants saw the injured parties and realized or should have realized the peril; and
the defendants had time to avert the accident using reasonable care.
        2
          The Appellees dispute this point, arguing that the inherent danger of railroad tracks
establish that James was aware of his peril as a matter of law. In raising this argument, however,
the Appellees rely on cases that are factually inapposite from the present case. Notably, all of
the cases cited by the Appellees involve individuals who are either crossing or standing on
railroad tracks at the time that they are struck. The Appellees fail to cite to any case stating that
the inherent danger of railroad tracks extends beyond the tracks themselves and, if so, how far
this danger zone extends.


                                                   3
known that James was in peril, and that Crowder and Epstein had sufficient time to take action to

avoid the accident, had they used reasonable care.

       The Appellees, however, argue that neither Greear nor the last clear chance doctrine

applies to the present case because James’s negligence continued up to the point of the accident,

thereby making it a proximate cause of his injuries. In making this argument, the Appellees note

that, prior to Greear, this Court recognized that the last clear chance doctrine had “no application

to a case where both parties are equally guilty of neglect of an identical duty, the consequences

of which continue on the part of both to the moment of the injury and proximately contribute

thereto.” Roanoke Ry. & Elec. Co. v. Carroll, 112 Va. 598, 604, 72 S.E. 125, 128 (1911). See

also Harris Motor Lines, Inc. v. Green, 184 Va. 984, 991, 37 S.E.2d 4, 6 (1946) (“[W]here two

people are both guilty of continuous acts of negligence down to the time of the accident, the

doctrine of the last clear chance does not apply; otherwise there would be nothing left of the law

of contributory or concurring negligence.”). The Appellees assert that Greear did not expressly

overrule the line of cases addressing this continuing negligence rule. Indeed, they assert this

Court’s repeated admonishment that “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,” Greear, 197 Va. at 237-38, 89 S.E.2d at 52-53, is

a tacit acknowledgement that the continuing negligence rule was unaffected by Greear. They



        It is further worth noting that we do not presently know how close to the tracks James
was when he was struck. The third amended complaint alleges that James was walking adjacent
to the railroad tracks. Additionally, it alleges that he was not so close to the tracks that he was
struck by the train itself, given Gina’s allegation that James was struck by “a part of the Train
that extended out from the side of the body of the Train.” (Emphasis added.) Thus, even if the
Appellees could cite to any jurisprudence indicating the existence of a “zone of danger” that
extends beyond the railroad tracks, it would likely still be premature to grant demurrer, as we do
not know how close James actually was to the track or how far out from the train the part that
struck him protruded.


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further note that this Court continues 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, 497 S.E.2d 467, 470 (1998). We disagree with the Appellees.

       The last clear chance doctrine “means precisely what the name implies -- that is, that one

of the litigants had a last clear chance to avoid inflicting the damage or injury, notwithstanding

the fact that the other litigant had previously, by his negligence, placed himself in a situation of

peril.” Eisenhower v. Jeter, 205 Va. 159, 163, 135 S.E.2d 786, 788-89 (1964). In Greear, the

Court acknowledged that there were two existing approaches to the application of the last clear

chance doctrine. The first approach, referred to as the contributory negligence approach, focused

on whether the plaintiff’s contributory negligence was ongoing and, therefore, a proximate cause

of the accident. Greear, 197 Va. at 238, 89 S.E.2d at 53 (citing Anderson v. Payne, 189 Va. 712,

54 S.E.2d 82 (1949)). This approach is akin to the continuing negligence rule espoused by the

Appellees. The second approach is more akin to the approach advanced by Gina, as it focused

on whether the defendant “saw [the plaintiff] and realized, or should have realized, his situation

of peril in time to avert the accident.” Id. (citing Lanier v. Johnson, 190 Va. 1, 55 S.E.2d 442

(1949)). Addressing these two approaches, the Court noted that “the contributory negligence

approach does not provide a guide for applying it in the case of the plaintiff who is not helpless

but only unconscious of his situation.” Id. Although the Court did not explicitly overrule either

approach, it explained that, “[i]n the hope of affording a more precise method of applying the last

clear chance doctrine,” it was adopting a new rule:

               Where the injured person has negligently placed himself in a
               situation of peril from which he is physically unable to remove
               himself, the defendant is liable if he saw, or should have seen, him
               in time to avert the accident by using reasonable care. Where the
               plaintiff has negligently placed himself in a situation of peril from
               which he is physically able to remove himself, but is unconscious



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               of his peril, the defendant is liable only if he saw the plaintiff and
               realized, or ought to have realized, his peril in time to avert the
               accident by using reasonable care.

Id. at 238-39, 89 S.E.2d at 53.

       The significance of this new rule is highlighted by the fact that, in the years since Greear,

this Court has not once ruled that a plaintiff’s continuing negligence alone bars the application of

the last clear chance doctrine. Since Greear, there have only been two cases involving the last

clear chance doctrine where this Court has even mentioned a plaintiff’s continuing negligence.

See Cook v. Shoulder, 200 Va. 281, 105 S.E.2d 860 (1958); Brown v. Vinson, 198 Va. 495, 95

S.E.2d 138 (1956). Notably, both cases turned on the fact that the defendant had no clear

opportunity to avoid the accident and not, as the Appellees insist, on the fact that the plaintiffs’

negligence continued up to the point of the accident. Cook, 200 Va. at 286, 105 S.E.2d at 863;

Brown, 198 Va. at 499, 95 S.E.2d at 141. Indeed, in both cases, our discussion of the plaintiffs’

continuing negligence could, at best, be described as a passing reference. 3

       The reason a plaintiff’s continuing negligence does not bar the application of the last

clear chance doctrine is because

               The doctrine of last clear chance presupposes a situation where
               there is negligence on the part of defendant and contributory
               negligence on the part of plaintiff, which upon ordinary and purely
               legalistic principles would result in a finding in favor of defendant.
               However, for humane considerations and to avoid that harsh and
               inevitable result, the law permits two types of plaintiffs to recover,
               notwithstanding their negligence, if, and only if, certain
               circumstances exist.

Jones v. Aluminum Window & Door Corp., 201 Va. 283, 290, 110 S.E.2d 531, 536 (1959).

       3
         We reached a similar conclusion in Norfolk & W. Ry. Co. v. Hagy, 201 Va. 183, 191,
110 S.E.2d 177, 183 (1959). Although we did not explicitly mention the nature of the plaintiff’s
contributory negligence in Hagy, the facts of that case clearly demonstrate that the plaintiff’s
contributory negligence was, in fact, continuing at the time of the accident. Notwithstanding the
continuing nature of the negligence, the Court held that the plaintiff’s case “may be saved by the
application of the doctrine of last clear chance.” Id. at 191, 110 S.E.2d at 183.


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          Also, the doctrine is merely the application of another, well established principle of law:

that a defendant’s negligence can be an efficient intervening cause of an accident which renders

a plaintiff’s contributory negligence remote. See Southern Ry. Co. v. Bailey, 110 Va. 833, 845,

67 S.E. 365, 396 (1910) (collecting cases on the last clear chance doctrine and discussing

intervening causation); Gunter v. Southern Ry. Co., 126 Va. 565, 575, 101 S.E. 885, 887 (1920)

(same).

                 [W]here the negligence of the defendant is the proximate cause of
                 the injury, and that of the plaintiff only the remote cause, the
                 plaintiff may recover, notwithstanding his negligence; the doctrine
                 in that respect being that the law regards the immediate or
                 proximate cause which directly produces the injury, and not the
                 remote cause which may have antecedently contributed to it. From
                 that principle arises the well-established exception to the general
                 rule that if, after the defendant knew, or, in the exercise of ordinary
                 care, ought to have known, of the negligence of the plaintiff, it
                 could have avoided the accident, but failed to do so, the plaintiff
                 can recover. In such case the subsequent negligence of the
                 defendant in failing to exercise ordinary care to avoid injuring the
                 plaintiff becomes the immediate or proximate and efficient cause
                 of the accident, which intervenes between the accident and the
                 more remote negligence of the plaintiff.

Bailey, 110 Va. at 845, 67 S.E. at 369.

          In Bailey, this Court explained the application of the last clear chance doctrine in a

manner that is particularly apropos to the present case.

                 If it be the duty of a person upon the track of a railway to keep a
                 constant lookout for approaching trains . . . and if it be the duty of
                 the servants of the company in control of the train to exercise
                 reasonable care to discover the presence of a person upon the track,
                 and if in the exercise of such reasonable care the presence of such
                 person would be discovered, and the person on the track is injured
                 and there be no other fact proved, then it is apparent that the case
                 stated would be one of mutual and concurring negligence, and
                 there can be no recovery. The duty was equal and each is equally
                 guilty of its breach. 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


                                                    7
               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.

Id. at 846, 67 S.E. at 370 (emphasis added).

       An examination of this Court’s jurisprudence leads to the conclusion that the continuing

nature of a plaintiff’s contributory negligence does not automatically bar the application of the

last clear chance doctrine. Rather, once a plaintiff’s contributory negligence is established, the

application of the doctrine turns first on whether the defendant was also negligent and then on a

determination of which party, if any, had the last clear chance to avoid the accident, as the name

implies. Thus, contrary to the Appellees’ argument, the fact that James’s negligence continued

up to the point of the accident, without more, does not bar the application of the last clear chance

doctrine.

       The Appellees further claim that James acted with willful and wanton negligence and,

therefore, the last clear chance doctrine should not apply in the present case. We note, however,

that the issue of whether James’s negligence was willful and wanton is a question of fact upon

which reasonable persons could disagree. See Huffman v. Love, 245 Va. 311, 314, 427 S.E.2d

357, 360 (1993) (“If reasonable persons, upon the facts presented, could differ regarding whether

[the conduct at issue] was so willful or wanton as to show a conscious disregard of the rights of

others, a jury question is presented.”). Therefore, given the present posture of the case, any

determination regarding the nature of James’s negligence is premature. Accordingly, we will

decline the Appellees’ invitation to rule on the matter at this time.




                                                  8
                                        III. CONCLUSION

       Gina’s third amended complaint alleged sufficient facts which, if proven at trial, may

support a verdict in her favor. Therefore, because a rational jury could conclude the last clear

chance doctrine applies based upon the facts pled and any reasonable inferences therefrom, the

trial court erred in sustaining the demurrer. Accordingly, we will reverse the decision of the trial

court and we will remand the matter to the trial court for further proceedings consistent with this

opinion.

                                                                           Reversed and remanded.




JUSTICE McCLANAHAN, concurring.

       I agree that the third amended complaint contains sufficient allegations to survive the demurrer.

I also agree that the trial court erred in dismissing the third amended complaint because, as the Court

concludes, “the continuing nature of a plaintiff’s contributory negligence does not automatically bar the

application of the last clear chance doctrine.”

       I write separately to emphasize that at trial, Gina will bear the burden of presenting sufficient

evidence of each element of the last clear chance doctrine to require a jury instruction on last clear

chance. Williams v. Harrison, 255 Va. 272, 277, 497 S.E.2d 467, 470 (1998). In over 50 years, “we

have declined to require the application of the [last clear chance] doctrine” in those cases where

plaintiffs have failed to prove the necessary elements. See id. In fact, since we clarified the last clear

chance doctrine in Greear v. Noland Co., 197 Va. 233, 237-39, 89 S.E.2d 49, 52-53 (1955), we have not

required application of the last clear chance doctrine to an “inattentive” victim. Furthermore, although

we have held that a victim is not legally “helpless” within the meaning of the last clear chance doctrine

when the evidence at trial established that the physical incapacity was produced by voluntarily induced



                                                  9
intoxication, Pack v. Doe, 236 Va. 323, 329-30, 374 S.E.2d 22, 25-26 (1988), we have not had occasion

to consider whether a similar exception would apply if the evidence at trial established that a victim’s

inattentiveness was produced by voluntary obstruction of his senses.




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