specially concurring:
I concur in the result.
Neither Section 479 nor 480, Restatement 2d of Torts, applies to our fact situation. For that reason, the trial court’s refusal to instruct on the last clear chance doctrine was correct. However, the distinction between the two principles of law should be restated.
Section 479 applies only to a helpless plaintiff and Section 480 only to an inattentive one. Odekirk v. Austin, 90 Ariz. 97, 366 P.2d 80 (1961). In order to permit the giving of the last clear chance instruction in the case of an inattentive plaintiff, clearly our case, the defendant must have actually seen the plaintiff at a time when the plaintiff’s impending peril should have been recognized by defendant and defendant still had the opportunity to avoid the injury.
Confusion and creative advocacy have obscured the distinction between a helpless and inattentive plaintiff. In order to avail himself of the advantage of the requirement that defendant “saw or ought to have seen . . . ”, as opposed to actually seeing the plaintiff’s perilous situation, plaintiff suggests that the inattentive plaintiff became a helpless plaintiff by the mere passage of time.
I believe that an inattentive plaintiff remains such if, in his inattentive state, he passes the point in time where he cannot extricate himself because of the lack of time to do so, even if thereafter he became attentive to his crisis. It was his continuing inattention that carried him past the point of no return and he does not thereafter become helpless for purposes of Section 479. Otherwise, there would be no need for two rules as it is difficult to imagine a situation *188where an inattentive plaintiff does not become helpless based solely upon the lack of time to extricate himself.
The mathematical calculations of an accident reconstructionist should not be allowed to convert an inattentive plaintiff to a helpless plaintiff. Once the classification of plaintiff, whether helpless or inattentive, has been determined, and the principle of last clear chance is still found applicable on the facts, such calculations could be useful to determine whether there was a last clear chance to avoid the injury.
As the plaintiff was inattentive, and the defendant did not see plaintiff prior to the accident, or not until there was no chance to avoid the collision, the trial court properly denied the requested instruction.
NOTE: Chief Judge JAMES L. HATHAWAY having requested that he be relieved from consideration of this matter, Superior Court Judge MATTHEW W. BOROWIEC was called to sit in his stead and participate in the determination of this decision.