Davenport v. Cotton Hope Plantation Horizontal Property Regime

Supreme Court of South Carolina · Torts

TortsComparative negligenceAssumption of riskPremises liabilitycomparative negligenceassumption of risksecondary implied assumption of riskexpress assumption of risk

Facts

Davenport leased a top-floor condominium unit at Cotton Hope Plantation and regularly used a nearby exterior stairway. Beginning in June 1991, he repeatedly reported that floodlights at the bottom of that stairway were not working, but he continued to use the stairway; on August 12, 1991, he fell after stepping toward what appeared to be a step but was actually a shadow, and he admitted he was not using the handrail. Cotton Hope, through its agent, had hired Carson Landscaping to perform maintenance, including checking outdoor lights and changing bulbs as needed. Davenport sued Cotton Hope for his injuries, and Cotton Hope sought indemnification from Carson.

Issue

Whether, under South Carolina's comparative negligence system, assumption of risk remains a complete bar to a plaintiff's negligence claim or instead must be compared with the defendant's negligence. Also, whether the directed verdict for Cotton Hope could be affirmed on the alternative grounds of no duty breach, no proximate cause, or Davenport's negligence exceeding Cotton Hope's as a matter of law.

Rule

In South Carolina, a plaintiff is not barred from recovery by assumption of risk unless the degree of fault arising from that conduct is greater than the negligence of the defendant. Secondary implied assumption of risk is subsumed into comparative negligence, while express assumption of risk and primary implied assumption of risk remain unaffected. On review of a directed verdict, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party, and the motion may be granted only if one inference can be drawn from the evidence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Charleston, Nina Lopez repeatedly told her apartment complex manager that the only overhead light above a common breezeway step was burned out. One night she used the breezeway anyway, despite knowing it was dim, and fell when she misjudged the edge of the step. She sues the property owner for negligent maintenance.

If the owner moves for judgment solely on the ground that Nina assumed the risk by using the dark breezeway after knowing about the hazard, how should the court rule under the governing doctrine?

Explanation. The majority held that secondary implied assumption of risk is subsumed into South Carolina's comparative negligence system. A plaintiff who knowingly encounters a risk allegedly created by the defendant's negligence is not automatically barred; instead, the plaintiff's fault is compared to the defendant's negligence. Recovery is barred only if the plaintiff's fault is greater than the defendant's negligence. (Derived from Davenport v. Cotton Hope Plantation Horizontal Property Regime (n.d.).)