On March 9, 2017, in the wrongful death train accident case of Coutlakis v. CSX Transp., Inc., No. 160277, the Virginia Supreme Court held that “the continuing nature of a plaintiff’s contributory negligence does not automatically bar the application of the last clear chance doctrine”. Id. at 8. Coutlakis reversed and remanded Richmond Circuit Court’s dismissal on demurrer, where Plaintiff’s decedent was killed from behind by a passing train while walking adjacent to railroad tracks and listening to music with earbuds. Id. at 1-2.

Coutlakis recognized that last clear chance applies to a “helpless plaintiff” who is “unable to remove himself” from peril and to an “inaltentive plaintiff” who is “unconscious of his peril”. Id. at 3. Coutlakis also recognized that the last clear chance doctrine does not apply to a victim’s “willful and wanton negligence,” but that willful and wanton negligence is a question of fact. Id. at 8.

Concurring alone in Coutlakis, Justice McClanahan emphasized that Plaintiff bears the burden of proving last clear chance. Id. at 9. She also observed that last clear chance doctrine does not apply to a “helpless” victim whose “physical incapacity was produced by voluntary intoxication,” and questioned whether it would apply where “a victim’s inattentiveness was produced by voluntary obstruction of his senses”. Id. at 9-10.