Davenport v. Cotton Hope Plantation Horizontal Property Regime

1998

Venue: SC SC
Facts: A light is out in the middle stairway of the condo, in spite of repeated complaints. Davenport is walking there one night, in spite of the fact that he was the complainer. Trips and falls.
Posture: Directed verdict for defendant at trial, reversed on appeal.
Issue: Is the assumption of risk a complete bar to recovery in SC's comparative negligence system?
Holding: No. Remanded for new trial.
Rule: Four requirements for establishing the defense of assumption of risk:
  1. Plaintiff must know of the facts constituting the danger
  2. Plaintiff must know it's actually dangerous
  3. Plaintiff must appreciate the nature and extent of danger
  4. Plaintiff must voluntarily expose self to danger
Assumption of risk can be express or implied. Implied assumption of risk can be primary or secondary. Secondary is when a plaintiff knowingly encounters a risk created by the defendant's negligence.

We conclude that:

  1. Assumption of risk is not an absolute defense.
  2. Plaintiff's conduct in assuming a risk can be compared with defendant's negligence.
  3. Plaintiff's assumption of risk can be made part of the comparative fault analysis.
  4. These findings won't encourage unnecessary risk-taking.
  5. Recovery is only barred when fault arising from assumption of risk exceeds the negligence of the defendant.
Reasoning: Not many states retain assumption of risk as a complete bar to recovery. There's contributory negligence, but the difference is whether one freely elected to encounter the risk. Some states hang a lot of importance on this distinction. WV is nicest: they recognize the distinction, but don't treat assumption of risk as a complete bar. We like that.
Dicta: