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24850 - Davenport v. Cotton Hope Plantation

Davis Adv. Sh. No. XX
S.E. 2d









THE STATE OF SOUTH CAROLINA

In The Supreme Court

Alvin Davenport, Respondent,

v

Cotton Hope Plantation

Horizontal Property Regime, Petitioner,

v.

Carson Landscaping

Company, Inc., Third-Party Defendant

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

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.





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DAVENPORT v. COTTON HOPE PLANTATION





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

Attorney's Association.

William A. Jordan, of Greenville, for South Carolina Trial Lawyer's

Association.





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

modified.





FACTUAL/PROCEDURAL BACKGROUND





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

negligence.





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





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DAVENPORT v. COTTON HOPE PLANTATION





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

contributory negligence?



(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

alleged risk?



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DAVENPORT v. COTTON HOPE PLANTATION





(4) Should South Carolina adopt a policy which would allow people to

volunteer to be plaintiffs by taking unnecessary risks even if created

by others?



(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

only?





LAW/ANALYSIS





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



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DAVENPORT v. COTTON HOPE PLANTATION





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,




1The modern notion of assumption of risk has its roots in the Latin

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.



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DAVENPORT v. COTTON HOPE PLANTATION





"[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

(1993).





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

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DAVENPORT v. COTTON HOPE PLANTATION





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


2 See Knight v. Jewett, 834 P.2d 696 (Cal. 1992); Fell v. Zimath, 575

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).



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DAVENPORT v. COTTON HOPE PLANTATION





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).




3 In South Carolina, there are no cases that apply the term "primary

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.

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DAVENPORT v. COTTON HOPE PLANTATION





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


4Reasonable implied assumption of risk exists when the plaintiff is

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.

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DAVENPORT v. COTTON HOPE PLANTATION





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

assumption of risk as an absolute defense are Georgia,5 Mississippi,6

Nebraska,7 Rhode Island,8 and South Dakota.9 See Henry Woods and Beth

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


5 Harris v. Star Service & Petroleum Co., 318 S.E.2d 239 (Ga. 1984).

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).

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DAVENPORT v. COTTON HOPE PLANTATION





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


10 In Bradley, v. Appalachian Power Co., 256 S.E.2d 879 W.Va 1979),

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.



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DAVENPORT v. COTTON HOPE PLANTATION





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



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DAVENPORT v. COTTON HOPE PLANTATION





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

decision.







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


12 The Ohio Supreme Court used a similar analysis in Anderson v.

Ceccardi, 415 N.E.2d 780, 783 (Ohio 1983).



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DAVENPORT v. COTTON HOPE PLANTATION





disagree.





" [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

acts.





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

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DAVENPORT v. COTTON HOPE PLANTATION





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

determination.





CONCLUSION





Based on the foregoing, the Court of Appeals' decision is AFFIRMED AS

MODIFIED.





FINNEY, C. J. , MOORE, WALLER and BURNETT, JJ. , concur.









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