THE STATE OF SOUTH CAROLINA
In The Supreme Court
Alvin Davenport, Respondent,
Cotton Hope Plantation
Horizontal Property Regime, Petitioner,
Company, Inc., Third-Party Defendant
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Beaufort County
Gerald C. Smoak, Judge
Opinion No. 24850
Heard April 22, 1998 - Filed November 9, 1998
AFFIRMED AS MODIFIED
Russell S. Stemke of Pratt-Thomas, Pearce, Epting, & Walker,
P.A., of Charleston, for Petitioner.
G. Richardson Wieters, and Mary K. Monville, of Hilton Head
Island, for Respondent.
A. Parker Barnes, Jr. of Parker Barnes, & Associates, of Beaufort,
for Third-Party Defendant.
Stephen P. Groves and Stephen L. Brown of Young, Clement, Rivers,
& Tisdale, of Charleston, and John S. Wilkerson, III, of Turner, Padget,
Graham, & Laney, P.A., of Florence, for South Carolina Defense Trial
William A. Jordan, of Greenville, for South Carolina Trial Lawyer's
TOAL, A.J.: This is a comparative negligence case arising out of an
accident in which respondent, Alvin Davenport, was injured while descending
a stairway near his apartment. We granted certiorari to review the Court of
Appeals' opinion in Davenport v. Cotton Hope Plantation Horizontal Property
Regime, 325 S.C. 507, 482 S.E.2d 569 (Ct. App. 1997). We affirm as
Alvin Davenport is a resident of Cotton Hope Plantation located on
Hilton Head Island. The plantation is organized under state law as Cotton
Hope Plantation Horizontal Regime ("Cotton Hope"). Cotton Hope
is composed of ninety-six condominium units located in multiple buildings.
Each building consists of three levels. The building s have three stairways
each, one in the middle and two on either side. Davenport's unit is on the
top level, approximately five feet from a stairway. Davenport leases his unit
from the owner.
Cotton Hope employed Property Administrators, Incorporated ("PAI")
to maintain the grounds at Cotton Hope Plantation, In April 1991, PAI, as
Cotton Hope's agent, hired Carson Landscaping Company, Inc., ("Carson'') to
perform landscaping and general maintenance work at the condominiums.
Carson's duties included checking the outdoor lights and changing light bulbs
as needed. The contract between Cotton Hope and Carson also required
Carson to indemnify Cotton Hope for any losses resulting from Carson's
In June 1991, Davenport began reporting that the floodlights at the
bottom of the stairway he used were not working. Davenport testified he
made several phone calls to PAI complaining, about the problem. Davenport
nevertheless continued to use the stairway during this On the evening
of August 12, 1991, Davenport fell while descending the stairway closest to
his apartment, Davenport, testified he fell after attempting to place his foot
on what appeared to be a step but was really a shadow caused by the broken
floodlights. He admitted not using the handrail in the stairway.
Davenport sued Cotton Hope for his injuries. Cotton Hope, in turn,
brought a third-party claim against Carson for indemnification. At the close
of all the evidence, the trial court directed a verdict against Davenport,
finding he had assumed the risk of injury. The trial court also held that
even if assumption of risk were abrogated by the adoption of comparative
negligence, Davenport was more than fifty-percent negligent. The trial court
then directed a verdict in favor of Carson on Cotton Hope's third-party claim,
finding there was nothing for Carson to indemnify. Davenport and Cotton
Hope appealed the trial court's ruling.
In Davenport v. Cotton Hope Plantation Horizontal Property Regime,
325 S.C. 507, 482 S.E.2d 569, the Court of Appeals held that assumption of
risk had been subsumed by South Carolina's adoption of comparative
negligence. As such, assumption of risk was no longer a complete defense to
a negligence claim but, instead, was simply another factor to consider in
comparing the parties' negligence. The court ruled that the relative
negligence of Davenport and Cotton Hope turned on factual considerations
which should have been submitted to the jury. As for Cotton Hope's cross-
appeal, the court remanded the issue for jury determination. Judge Goolsby
dissented, arguing assumption of risk was not subsumed by comparative
negligence because assumption of risk and contributory negligence were
separate and distinct concepts. In a separate opinion, Judge Stilwell
concurred in Judge Goolsby's dissent.
This Court granted Cotton Hope's petition for a writ of certiorari to
address the following issues:
(1) Is assumption of risk a doctrine which has, and should continue to
maintain, a separate, independent, and distinct identity from
(2) Can Davenport's assumption of the risk created by Cotton Hope's
alleged negligence be "compared" with that negligence in apportioning
liability under South Carolina's comparative negligence schemes?
(3) Can Cotton Hope's alleged negligence, based on objective standards,
be merged with or compared to the subjective standards which form the
basis of assumption of the risk, i.e. Davenport's decision to take the
(4) Should South Carolina adopt a policy which would allow people to
volunteer to be plaintiffs by taking unnecessary risks even if created
(5) Did Davenport know, understand, and appreciate the alleged risk
he undertook such that he assumed the risk as a matter of law and
should be barred from recovery?
(6) Did Davenport establish any duty breached by Cotton Hope?
(7) Did Davenport's negligence exceed that of Cotton Hope?
(8) Even if assumption of risk is subsumed, did the Court of Appeals
err in holding that under our comparative negligence system a trial
court cannot direct a verdict for the defendant?
(9) Should the trial court's directed verdict be upheld on the basis that
the broken light was not the proximate cause of Davenport's injury?
(10) If it is determined that assumption of risk is subsumed by
comparative negligence, should such a ruling be applied prospectively
A. ASSUMPTION OF RISK IN A COMPARATIVE FAULT SYSTEM (Issues 1-5)
The threshold question we must answer is whether assumption of risk
survives as a complete bar to recovery under South Carolina's comparative
negligence system. In Nelson v. Concrete Supply Company 303 S.C. 243, 399
S.E.2d 783 (1991), we adopted a modified version of comparative negligence.
Under this system, "[f]or all causes of action arising on or after July 1, 1991,
a plaintiff in a negligence action may recover damages if his or her
negligence is not greater than that of the defendant.'' Nelson, 303 S.C. at
245, 399 S.E.2d at 784. Nelson made clear that a plaintiff's contributory
negligence would no longer bar recovery unless such negligence exceeded that
of the defendant. Not so clear was what would become of the defense of
assumption of risk.
South Carolina first adopted assumption of risk within the employment
context.1 See, e.g., Hooper v. Columbia & Greenville R. R. Co., 21 S.C. 541,
547 (1884). The doctrine rested in contract and was founded upon a theory
of consent whereby the servant assumed those risks of employment that he
knew of or should have known about. Stogner v. Great Atlantic & Pacific
Tea Co., 184 S.C. 406, 192 S.E. 406 (1937).
This Court ultimately extended the defense to negligence cases outside
the traditional master-servant context. See, e.g., Smith v. Edwards, 186 S.C.
186, 195 S.E. 236 (1938). In Smith, The plaintiff died as a result of burns
she suffered while receiving a "permanent wave" at a beauty shop. The
defendant argued that the plaintiff had diabetes which made her peculiarly
susceptible to the injuries, and consequently, she assumed the risk of injury.
The plaintiff argued that under these facts, assumption of risk was not
available as an affirmative defense. This Court disagreed, stating,
maxim volenti non fit injuria ("to one who is willing, no harm is done") which
was originally applied in Roman Law by validating the process in which a
free citizen sold himself into slavery. See Jane P. North, Employees'
Assumption of Risk: Real or Illusory Choice?, 52 Tenn. L. Rev. 35 (1984); 65A
C.J.S. Negligence § 174(1) at 287 (1966). In the nineteenth century,
assumption of risk became entrenched in the English common law primarily
as a result of Lord Abinger's opinion in Priestly v. Fowler, 3 M. & W. 1, 150
Eng.Rep. 1030 (Ex. 1837). In Priestly, the plaintiff, a servant of the
defendant, was injured after being thrown to the ground when a "van"
overloaded by another servant broke down. Lord Abinger denied recovery,
stating, "the plaintiff must have known as well as his master, and probably
better, whether the van was sufficient, whether it was overloaded, and
whether it was likely to carry him safely." 150 Eng.Rep. at 1033.
The doctrine of assumption of risk, grounded in laissez-faire economics,
flourished during the Industrial Revolution. See North, 52 Tenn. L. Rev. 35.
Application of the defense was based upon the social justification that
employers in a rapidly industrializing society had to be free to pursue their
economic goals. Id. at 40. In line with this philosophy, assumption of risk
made its way into the American common law. See Tuttle v. Detroit, Grand
Haven & Milwaukee Ry., 122 U.S. 189, 196, 7 S. Ct. 1166. 1169, 30 L. Ed.
1114 (1886)("[assumption of risk] is a rule of public policy, inasmuch as an
opposite doctrine would not only subject employers to unreasonable and often
ruinous responsibilities, thereby embarrassing all branches of business . . .
."). Today, because of workmen's compensation laws, the defense is applied
less often in its traditional context of work-related injuries.
"[assumption of risk] applies to any case . . . where the facts proved show
that the person against whom the doctrine of assumption of risk is pleaded
knew of the danger, appreciated it, and acquiesced therein." Smith, 186 S.C.
at 191, 195 S.E. at 238.
Currently in South Carolina, there are four requirements to
establishing the defense of assumption of risk: (1) the plaintiff must have
knowledge of the facts constituting a dangerous condition; (2) the plaintiff
must know the condition is dangerous; (3) the plaintiff must appreciate
the nature and extent of the danger; and (4) the plaintiff must voluntarily expose
himself to the danger. Senn v. Sun Printing Co., 295 S.C. 169, 367 S.E.2d
456 (Ct. App. 1988). "The doctrine is predicated on the factual situation of
a defendant's acts alone creating the danger and causing the accident, with
the plaintiff's act being that of voluntarily exposing himself to such an
obvious danger with appreciation thereof which resulted in the injury." Id.
at 173, 367 S.E.2d at 458. Assumption of risk may be implied from the
plaintiffs conduct. Hoeffner v. The Citadel, 311 S.C. 361, 492 S.E.2d 190
As noted by the Court of Appeals, an overwhelming majority of
jurisdictions that have adopted some form of comparative negligence have
essentially abolished assumption of risk as an absolute bar to recovery.
Davenport, 325 S.C. at 514 n. 4, 482 S.E.2d at 573 n. 4; see also F. Patrick
Hubbard & Robert L. Felix, Comparative Negligence in South Carolina:
Implementing Nelson v. Concrete Supply Co., 43 S.C. L. Rev. 273, 332 (1992);
Jean W. Sexton, Tort Law -- Assumption of Risk and Pennsylvania's
Comparative Negligence Statute -- Howell v. Clyde, 620 A.2d 1107 (Pa.1993),
67 Temp. L. Rev. 903, 910-11 (1994). In analyzing the continuing viability
of assumption of risk in a comparative negligence system, many courts
distinguish between "express" assumption of risk and "implied" assumption
of risk. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts,
§ 68 at 496 (5th ed. 1984). Implied assumption of risk is further divided into
the categories of "primary" and "secondary" implied assumption of risk. Id.
We will discuss each of these concepts below.
Express assumption of risk applies when the parties expressly agree in
advance, either in writing or orally that the plaintiff will relieve the
defendant of his or her legal duty toward the plaintiff. See Restatement
(Second) of Torts § 496B (1965), Prosser and Keeton, § 68 at 496; Victor E.
Schwartz, Comparative Negligence, § 9.2 (3d ed. 1994). Thus, being under
no legal duty, the defendant cannot be charged with negligence. Prosser and
Keeton, § 68 at 481. Even in those comparative fault jurisdictions that have
abrogated assumption of risk, the rule remains that express assumption of
risk continues as an absolute defense in an action for negligence.2 The
reason for this is that express assumption of risk sounds in contract, not tort,
and is based upon an express manifestation of consent. See, e.g., Salinas v.
Viestra, 695 P.2d 369, 375 (Idaho 1985); Prosser and Keeton, § 68 at 496.
To avoid confusion, at least one court has suggested replacing the term
"express" assumption of risk with "consent." Salinas, 695 P.2d at 375. In
fact, this Court has analyzed such cases in terms of exculpatory contracts.
Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 281 S.E.2d 223
(1981). In Huckaby, a race spectator signed a waiver and release form before
suffering an injury at a race track. This Court barred the spectator's suit
against the track owner, stating, "'If a prospective participant wishes to place
himself in the competition sufficiently to voluntarily agree that he will not
hold the organizer or sponsor of the event liable for injuries, the courts
should enforce such an agreement."' Id. at 631, 281 S.E.2d at 224 (citation
omitted). As an additional sustaining ground, the Huckaby Court concluded
that the spectator's suit was barred by assumption of risk.
Express assumption of risk is contrasted with implied assumption of
risk which arises when the plaintiff implicitly, rather than expressly, assumes
known risks. As noted above, implied assumption of risk is characterized as
either primary or secondary. Primary implied assumption of risk arises when
the plaintiff impliedly assumes those risks that are inherent in a particular
A.2d 267 (Del. 1989); Kuehner v. Green, 436 So.2d 78, 80 (Fla. 1983); Salinas
v. Viestra, 695 P.2d 369, 375 (Idaho 1985); Barrett v. Fritz, 248 N.E.2d 111
(Ill. 1969); Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La. 1988);Wilson
v. Gordon, 354 A.2d 398 (Me. 1976); Kopischke v. First Cont. Corp., 610 P.2d
668 (Mont. 1980); Mizushima v. Sunset Ranch, Inc., 737 P.2d 1158 (Nev.
1987); Siglow v. Smart, 539 N.E.2d 636, 639 (Ohio App. 3d 1987); Rutter v.
Northeastern Beaver Cty., Etc., 437 A.2d 1198 (Pa. 1981); Perez v. McConkey,
872 S.W.2d 897, 905-06 (Tenn. 1994); Farley v. M.M. Cattle Co., 529 S.W.2d
751 (Tex. 1975); Sunday v. Stratton Corp., 390 A.2d 398 (Vt. 1978); Boyce v.
West, 862 P.2d 592 (Wash. App. 1993); Brittain v. Booth, 601 P.2d 532 (Wyo.
1979); Henry Woods and Beth Deere, Comparative Fault, 6:1 at 142 (3d ed.
1996); Schwartz, § 9.2; Prosser and Keeton, § 68 at 496; Carol A. Mutter,
Moving to Comparative Negligence in an Era of Tort Reform: Decisions For
Tennessee, 51 Tenn. L. Rev. 199, 284 (1990); John L. Diamond, Assumption
of Risk-After Comparative Negligence: Integrating Contract Theory into Tort
Doctrine, 52 Ohio St. L. J. 717, 726 (1991).
activity. See, e.g., Fortier v. Los Rios Community College Dist., 45 Cal. App.
4th 430 (1996)(student injured in a collision during football drill); Swagger
v. City of Crystal, 379 N.W.2d 183 (Minn. App. 1985)(injured while watching
softball game). Primary implied assumption of risk is not a true affirmative
defense, but instead goes to the initial determination of whether the
defendant's legal duty encompasses the risk encountered by the plaintiff.
E.g., Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994); Scott v. Pacific West
Mountain Resort, 834 P.2d 6 (Wash. 1992); see also Prosser and Keeton, § 68
at 496. In Perez, the Tennessee Supreme Court summarized the doctrine in
the following way:
In its primary sense, implied assumption of risk focuses not on
the plaintiff's conduct in assuming the risk, but on the
defendant's general duty of care. . . . Clearly, primary implied
assumption of risk is but another way of stating the conclusion
that a plaintiff has failed to establish a prima facie case [of
negligence] by failing to establish that a duty exists.
872 S.W.2d at 902. In this sense, primary implied assumption of risk is
simply a part of the initial negligence analysis.3 Blackburn v. Dorta, 348
So.2d 287, 291 (Fla. 1977).
implied" assumption of risk. However, in Gunther v. Charlotte Baseball, Inc.,
854 F.Supp. 424 (D.S.C. 1994), the federal district court was faced with the
question of whether a spectator at a baseball game was barred, under South
Carolina law, from suing the stadium owner for injuries sustained after being
struck by a foul ball. The court noted that the issue was one of first
impression in South Carolina. The court proceeded to bar the plaintiffs suit,
stating, "the vast majority of jurisdictions recognize this hazard [being struck
by a foul ball] to be a risk that is assumed by the spectators because it
remains after due care has been exercised (erecting a screen), and it is not
the result of negligence by the ball club." Gunther, 8.54 F.Supp. at 428
(citing Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo. 1950)).
The court's statement, in this regard, was an implicit application of the
doctrine of primary implied assumption of risk -- the defendant's duty of care
did not encompass the risk involved, and as such, there was no prima facie
case of negligence. Nevertheless the court relied upon a general theory of
assumption of risk since this issue had not yet been directly addressed by a
South Carolina court. Id. In doing so, the court cited a variety of South
Carolina cases including Huckaby v. Confederate Motor Speedway, Inc., 276
S.C. 629, 281 S.E.2d 223 (an express assumption of risk case). Id. at 429.
Secondary implied assumption of risk, on the other hand, arises when
the plaintiff knowingly encounters a risk created by the defendant's
negligence. Carol A. Mutter, Moving to Comparative Negligence in an Era
of Tort Reform, 57 Tenn. L. Rev. 199, 286 (1990). It is a true defense
because it is asserted only after the plaintiff establishes a prima facie case
of negligence against the defendant. Secondary implied assumption of risk
may involve either reasonable or unreasonable conduct on the part of the
plaintiff. In Litchfield Company of South Carolina, Inc. v. Sur-Tech, Inc., 289
S.C. 247, 249, 345 S.E.2d 765, 766 (Ct. App. 1986), the Court of Appeals
illustrated secondary "unreasonable" implied assumption of risk:
[T]he conduct of a plaintiff in assuming a risk may itself be
unreasonable and thus negligent because the risk he assumes is
out of all proportion to the advantage which he is seeking to
gain. For example, if a plaintiff dashed into a fire in order to
save his hat, it might well be argued that he both assumed the
risk of being injured and that he acted unreasonably. In such
cases, a defendant can maintain both defenses.
(emphasis added).4 Since express and primary implied assumption of risk are
compatible with comparative negligence, we will refer to secondary implied
assumption of risk simply as "assumption of risk."
As alluded to in Litchfield, supra, assumption of risk and contributory
negligence have historically been recognized as separate defenses in South
Carolina. See Ruth v. Lane, 254 S.C. 431, 175 S.E.2d 820 (1970)(rejecting
the argument that the defenses of contributory negligence and assumption of
risk may be merged into the same defense and treated interchangeably);
Cooper v. Mayes, 234 S.C. 491, 496, 109 S.E.2d 12, 15 (1959) ("Attempt in
such cases to interrelate assumption of risk and contributory negligence is
more academic than practical, and sometimes loses sight of the fact that the
difference between the two is fundamental and not merely of degree."); Broom
v. Southeastern Highway Contracting, Company, Inc., 291 S.C. 93, 352 S.E.2d
302 (Ct. App. 1986)(holding that unlike contributory negligence, which is
based on carelessness and inadvertence, assumption of risk requires
deliberate and voluntary choice to assume a known risk). However, other
aware of a risk negligently created by the defendant but, nonetheless,
voluntarily proceeds to encounter the risk; when weighed against the risk of
injury, the plaintiff's action is reasonable. See Jean W. Sexton, 6-1 Temp. L. Rev. 903.
courts have found assumption of risk functionally indistinguishable from
contributory negligence and consequently abolished assumption of risk as a
complete defense. See Hubbard and Felix, 43 S.C. L. Rev. at 290; Carol A.
Mutter, 57 Tenn. L. Rev. at 286.
To date, the only comparative fault jurisdictions that have retained
Deere, Comparative Fault, § 6:6 (3d ed. 1996); Schwartz, § 9.3. Only the
Rhode Island Supreme Court has provided a detailed discussion of why it
believes the common law form of assumption of risk should survive under
comparative negligence. See Schwartz, § 9.3. In Kennedy v. Providence
Hockey Club, Inc., 376 A.2d 329 (R.I. 1977), the Rhode Island Supreme Court
distinguished between assumption of risk and contributory negligence
emphasizing the former was measured by a subjective standard while the
latter was based on an objective, reasonable person standard. The court
further noted that it had in the past limited the application of assumption
of risk to those situations where the plaintiff had actual knowledge of the
hazard. The court then rejected the premise that assumption of risk and
contributory negligence overlap:
[C]ontributory negligence and assumption of the risk do not
overlap; the key difference is, of course, the exercise of one's free
will in encountering the risk. Negligence analysis, couched in
reasonable hypotheses, has no place in the assumption of the risk
framework. When one acts knowingly, it is immaterial whether
he acts reasonably.
Kennedy, 376 A.2d at 333.
Rhode Island's conclusions are in sharp contrast with the West Virginia
Supreme Court's opinion in King v. Kayak Manufacturing Corp., 387 S.E.2d
6 Singleton v. Wiley, 372 So.2d 272 (Miss. 1979).
7 Fritchley v. Love-Courson Drilling Co., 129 N.W.2d 515 (Neb. 1964).
8 Kennedy v. Providence Hockey Club, Inc., 316 A.2d 329 (R.I. 1977).
9 Bartlett v. Gregg 92 N.W.2d 654 (S.D. 1958).
511 (W.Va. 1989). Like Rhode Island, the West Virginia Supreme Court in
King recognized that assumption of risk was conceptually distinct from
contributory negligence. The court specifically noted that West Virginia's
doctrine of assumption of risk required actual knowledge of the dangerous
condition, which conformed with the general rule elsewhere in the country.
King, 387 S.E.2d at 516. In fact, the court cited Rhode Island's decision in
Kennedy as evidence of this general rule. Id. at n.9. Nevertheless, the West
Virginia court concluded that the absolute defense of assumption of risk was
incompatible with its comparative fault system.10 The court therefore adopted
a comparative assumption of risk rule, stating, "a plaintiff is not barred from
recovery by the doctrine of assumption of risk unless his degree of fault
arising therefrom equals or exceeds the combined fault or negligence of the
other parties to the accident." King, 387 S.E.2d at 517.11 The court
explained that the absolute defense of assumption of risk was as repugnant
to its fault system as the common law rule of contributory negligence. Id.
A comparison between the approaches in West Virginia and Rhode
Island is informative. Both jurisdictions recognize that assumption of risk is
conceptually distinct from contributory negligence. However, Rhode Island
focuses on the objective/subjective distinction between the two defenses and,
therefore, retains assumption of risk as a complete bar to recovery. On the
other hand, West Virginia emphasizes that the main purpose of its
comparative negligence system is to apportion fault. Thus, West Virginia
rejects assumption of risk as a total bar to recovery and only allows a jury
to consider the plaintiff's negligence in assuming the risk. If the plaintiff's
total negligence exceeds or equals that of the defendant, only then is the
West Virginia adopted a "less than or equal to" comparative negligence
system whereby a plaintiff is barred from recovery only if his negligence is
equal to or greater than the defendant's negligence.
11The court offered the following Jury instruction:
Under our law, the plaintiff can be guilty of assumption of risk
and still be entitled to recover damages from the defendant(s) so
long as the plaintiff's fault from assumption of risk does not
equal or exceed the combined negligence of the other parties
whose negligence contributed to the accident.
King, 387 S.E.2d at 517 n. 17.
plaintiff completely barred from recovery.
Like Rhode Island and West Virginia, South Carolina has historically
maintained a distinction between assumption of risk and contributory
negligence, even when the two doctrines appear to overlap. See Litchfield,
289 S.C. 247, 345 S.E.2d 765. Thus, the pertinent question is whether a
plaintiff should be completely barred from recovery when he voluntarily
assumes a known risk, regardless of whether his assumption of that risk was
reasonable or unreasonable. Upon considering the purpose of our
comparative fault system, we conclude that West Virginia's approach is the
most persuasive model.
In Nelson, we adopted Chief Judge Sanders's analysis of comparative
negligence as stated in Langley v. Boyter, 284 S.C. 162, 32.5 S.E.2d 550 (Ct.
App. 1984) opinion quashed on procedural grounds by 286 S.C. 85, 332 S.E.2d
100 (1985). In Langley, Judge Sanders provided the following justification
for adopting a comparative negligence system: "It is contrary to the basic
premise of our fault system to allow a defendant, who is at fault in causing
an accident, to escape bearing any of its cost, while requiring a plaintiff, who
is no more than equally at fault or even less at fault, to bear all of its costs."
Langley, 284 S.C. at 183, 325 S.E.2d at 562. By contrast, the main reason
for having the defense of assumption of risk is not to determine fault, but to
prevent a person who knowingly and voluntarily incurs a risk of harm from
holding another person liable. See Wallace v. Owens-Illinois, Inc., 300 S.C.
518, 389 S.E.2d 155 (Ct. App. 1989). Cotton Hope argues that the
justification behind assumption of risk is not in conflict with South Carolina's
comparative fault system. We disagree.
As stated by Judge Sanders, it is contrary to the premise of our
comparative fault system to require a plaintiff, who is fifty-percent or less at
fault, to bear all of the costs of the injury. In accord with this logic, the
defendant's fault in causing an accident is not diminished solely because the
plaintiff knowingly assumes a risk. If assumption of risk is retained in its
current common law form, a plaintiff would be completely barred from
recovery even if his conduct is reasonable or only slightly unreasonable. In
our comparative fault system, it would be incongruous to absolve the
defendant of all liability based only on whether the plaintiff assumed the risk
of injury. Comparative negligence by definition seeks to assess and compare
the negligence of both the plaintiff and defendant. This goal would clearly
be thwarted by adhering to the common law defense of assumption of risk.12
Our conclusion that the absolute defense of assumption of risk is
inconsistent with South Carolina's comparative negligence system is
buttressed by our recent opinion in Spahn v. Town of Port Royal, 330 S.C.
168, 499 S.E.2d 205 (1998). In Spahn, we observed that South Carolina had
historically treated the doctrine of last clear chance as separate and distinct
from the doctrine of contributory negligence. Nevertheless, we held that last
clear chance had been subsumed by our adoption of comparative negligence
in Nelson. We stated that the "all or nothing" effect of last clear chance, in
relieving the plaintiff of liability, was inconsistent with the purpose and
policy behind our adoption of comparative negligence. In support of this
position, we cited Laws v. Webb, 658 A.2d 1000 (Del. 1995)(a doctrine that
assigns sole liability to one party regardless of the amount of fault simply
cannot survive under a system of comparative negligence).
Based on the above discussion, we answer the first five issues presented
in this appeal in the following manner: (1) although the absolute defense of
assumption of risk has historically been treated as a separate defense from
contributory negligence, it is incompatible with our comparative fault system;
(2) a plaintiff's conduct in assuming a risk can be compared with the
defendant's negligence; (3) a plaintiff's conduct in assuming the risk can be
made a part our comparative fault system; (4) by abolishing assumption of
risk as an absolute bar to recovery, South Carolina will not be adopting a
policy that would encourage people to take unnecessary risks; and (5) even
if Davenport assumed the risk of injury, he will not be barred from recovery
unless his negligence exceeds the defendant's negligence.
We therefore hold that a plaintiff is not barred from recovery by the
doctrine of assumption of risk unless the degree of fault arising therefrom is
greater than the negligence of the defendant. To the extent that any prior
South Carolina cases are inconsistent with this approach, they are overruled.
Express and primary implied assumption of risk remain unaffected by our
B. RETROACTIVE/PROSPECTIVE APPLICATION OF NEW RULE (Issue 10)
Cotton Hope argues that if assumption of risk, is abolished as an "all
or nothing" defense, such action should be applied prospectively only. We
Ceccardi, 415 N.E.2d 780, 783 (Ohio 1983).
" [T]he general rule regarding retroactive application of judicial decisions
is that decisions creating new substantive rights have prospective effect only,
whereas decisions creating new remedies to vindicate existing rights are
applied retrospectively. Prospective application is required when liability is
created where formerly none existed." Toth v. Square D Co., 298 S.C. 6, 8,
377 S.E.2d 584, 585 (1989)(citations omitted); see also Hardaway v. Lexington
County, 314 S.C. 22, 443 S.E.2d 569 (1994). In the instant case, Davenport
may still be barred from recovery if his negligence exceeds Cotton Hope's
negligence. Thus, his conduct in assuming the risk remains part of the
comparative negligence analysis. Moreover, it would not be unfair or
inappropriate to apply such a ruling retrospectively because defendants do
not rely upon the doctrine of assumption of risk when they commit negligent
We therefore apply our present ruling to the instant case and to all
causes of action that arise or accrue after the date of this opinion. Thus,
except for this case, if a cause of action arose or accrued prior to our decision
today, it will be governed by the common law form of assumption of risk, if
applicable, as it existed under South Carolina case law before this opinion.
C. APPLICATION OF NEW RULE TO INSTANT CASE (Issues 6-9)
Cotton Hope argues that even if this Court abrogates assumption of
risk as a complete defense, the trial court's directed verdict should be upheld
based on the following arguments: (1) as a matter of law, Cotton Hope did
not breach any duty owed to Davenport; (2) the broken light was not a
proximate cause of Davenport's injury; and (3) as a matter of law,
Davenport's negligence exceeded that of Cotton Hope. We disagree.
Upon review of an order granting a motion for directed verdict, the
evidence and all reasonable inferences must be viewed in the light most
favorable to the non-moving party. If only one inference can be drawn from
the evidence, the motion must be granted. Adams v. Creel, 320 S.C. 274, 465
S.E.2d 84 (1995); Brady Dev. Co., Inc. v. Town of Hilton Head Island, 312
S.C. 73, 439 S.E.2d 266 (1993).
Cotton Hope argues that it did not breach any duty owed to Davenport.
Specifically, Cotton Hope contends that it only had a duty to warn Davenport
of concealed dangerous conditions, and since Davenport knew of the danger,
Cotton Hope was relieved of its duty to warn. In Murphy v. Yacht Cove
Homeowners Association, 289 S.C. 367, 345 S.E.2d 709 (1986), we held that
a member of a condominium association, established pursuant to the
Horizontal Property Act, may bring a tort action against the association for
failing to properly maintain the common elements. Pursuant to the South
Carolina Horizontal Property Act, "general common elements" include
stairways. S.C. Code Ann. § 27-31-20(f)(2) (1991). Section 27-31-120 further
provides that "[a]ny conveyance or lease of an individual apartment is
deemed to also convey or lease the undivided interest of the owner in the
common elements, both general and limited, appertaining to the apartment
without specifically or particularly referring to same." Thus, Cotton Hope
owed a duty to Davenport, the lessee, to properly maintain the stairway.
Cotton Hope next argues that the broken light was not the proximate
cause of Davenport's injury. Cotton Hope contends that the broken light
could not have caused the injury because the light, if working, would have
been blocked by Davenport's body anyway. We find this to be a fact question
for jury determination. Oliver v. South Carolina Dep't of Highways & Pub.
Transp., 309 S.C. 313, 422 S.E.2d 128 (1992)(proximate causation is
ordinarily a fact question for the jury).
Cotton Hope finally argues that we should affirm the trial court's ruling
that, as a matter of law, Davenport was more than fifty-percent negligent.
The trial court based its ruling on the fact that Davenport knew of the
danger weeks before his accident, and he had a safe, alternate route.
However, there was also evidence suggesting Cotton Hope was negligent in
failing to properly maintain the lighting in the exterior stairway. In the light
most favorable to Davenport, it could be reasonably concluded that
Davenport's negligence in proceeding down the stairway did not exceed
Cotton Hope's negligence. Thus, it is properly submitted for jury
Based on the foregoing, the Court of Appeals' decision is AFFIRMED AS
FINNEY, C. J. , MOORE, WALLER and BURNETT, JJ. , concur.