Davenport v. Cotton Hope Plantation, No. 24850.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: TOAL, Justice
• Citation: 508 S.E.2d 565,333 S.C. 71
• Parties: Alvin DAVENPORT, Respondent, v. COTTON HOPE PLANTATION HORIZONTAL PROPERTY REGIME, Petitioner, v. Carson Landscaping Company, Inc., Third-Party Defendant.
• Docket Number: No. 24850.
• Decision Date: 09 November 1998

333 S.C. 71
508 S.E.2d 565

Alvin DAVENPORT, Respondent,
v.
COTTON HOPE PLANTATION HORIZONTAL PROPERTY REGIME, Petitioner,
v.
Carson Landscaping Company, Inc., Third-Party Defendant

No. 24850.

Supreme Court of South Carolina.

Heard April 22, 1998.

Decided November 9, 1998.

333 S.C. 74

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 Attorney's Association.

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

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

TOAL, Justice:

This is a comparative negligence case arising out of an accident in which respondent, Alvin Davenport, was injured

333 S.C. 75

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 buildings 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 time. 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

333 S.C. 76

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 scheme?

(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?

(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?

333 S.C. 77

(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 my 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 plaintiffs 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

333 S.C. 78

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, "[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)

333 S.C. 79

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 plaintiffs 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, 429 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...