Davenport v. Cotton Hope Plantation Horizontal Property Regime

Decision Date01 April 1996
Docket NumberNo. 2621,2621
Citation325 S.C. 507,482 S.E.2d 569
CourtSouth Carolina Court of Appeals
PartiesAlvin DAVENPORT, Appellant-Respondent, v. COTTON HOPE PLANTATION HORIZONTAL PROPERTY REGIME, Respondent-Appellant, v. CARSON LANDSCAPING COMPANY, INC., Third-Party Defendant-Respondent. . Heard

G. Richardson Wieters, of G. Richardson Wieters, P.C., Hilton Head Island, for appellant-respondent.

Russell S. Stemke, of Wise & Cole, Charleston, for respondent-appellant.

A. Parker Barnes, Jr., of A. Parker Barnes & Associates, Beaufort, for third-party defendant-respondent.

Amicus curiae Stephen P. Groves, of Young, Clement, Rivers & Tisdale, Charleston, on behalf of South Carolina Defense Trial Attorneys' Association.

HEARN, Judge:

This case was heard en banc to determine whether assumption of risk survives as a complete defense in negligence actions following South Carolina's adoption of comparative negligence. We hold it does not.

Appellant, Alvin Davenport, brought this negligence action against Cotton Hope Plantation Horizontal Property Regime, who in turn brought a third-party claim against Carson Landscaping, Inc. for indemnity. At the close of the evidence, the trial court directed a verdict against Davenport on his negligence claim, finding Davenport assumed the risk. The trial court also held Davenport was greater than fifty percent at fault as a matter of law. The trial court then directed a verdict in favor of Carson on Cotton Hope's third-party indemnification claim. Davenport and Cotton Hope appeal. We reverse and remand.


Davenport was a resident of Cotton Hope Condominiums on Hilton Head Island. His condominium was located on the top floor of one of the buildings within Cotton Hope Plantation. Three stairways served Davenport's floor, one on each end of the building and the third in the middle of the building. In June 1991, Davenport began reporting that the floodlights were out in the middle stairway that he used.

On the evening of August 12, 1991, Davenport left his condominium to go to work. Davenport descended the middle stairway, the one closest to his unit. The lights on the lower-level stairs were not working that night, although the lights were working at the top of the stairway. As Davenport descended the stairway, he slipped, fell on the lower-level stairs, and injured himself.

Prior to Davenport's accident, Cotton Hope, through its management company, Property Administrators, Inc., entered into a contract with Carson on April 15, 1991, whereby Carson agreed to provide certain services for common areas at Cotton Hope in consideration for payment of $3,000 per month. Under the contract, Carson agreed to check all outdoor lights and change the bulbs as needed. Carson also agreed to maintain the pools, trees, irrigation systems, lawns, shrubs, and parking areas.

The contract between Cotton Hope and Carson further provided:

[Carson] shall indemnify and hold harmless [Cotton Hope] ... from and against claims, damages, losses and expenses, including but not limited to attorney fees, arising out of or resulting from performance of [Carson's] work under this Contract, provided that such claim, damage, loss or expense is attributable to body injury ... but only to the extent caused in whole or in part by negligent acts or omission of [Carson] ... regardless of whether or not the claim, damage, loss or expense is caused in part by [Cotton Hope]. (emphasis added).


Davenport asserts the trial court erred in directing a verdict against him on the ground of assumption of risk, arguing that (1) assumption of risk is no longer a complete defense to a negligence action since our Supreme Court's adoption of comparative negligence, and (2) whether Davenport assumed the risk was a fact question that the trial judge should have submitted to the jury. We agree.

In 1991, the South Carolina Supreme Court joined the vast majority of our sister jurisdictions in adopting comparative negligence. Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). 1 Finding comparative negligence to be more equitable than the archaic rule of contributory negligence, the court in Nelson adopted a modified version of comparative negligence known as the "less than or equal to" approach. Under this version, a plaintiff in a negligence action may recover damages if his or her negligence is less than or equal to that of the defendant's. 2 Id. Stated another way, a plaintiff in South Carolina may recover only if his negligence does not exceed that of the defendant's. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 67, at 471-73 (5th ed. 1984).

As of 1996, forty-six states have adopted comparative negligence. 3 This nationwide trend away from adherence to an "all or nothing" rule such as contributory negligence in favor of the shared fault approach of comparative negligence has had a spillover effect in related areas. Doctrines like last clear chance, which was developed to ameliorate the harshness of the contributory negligence rule, and assumption of risk, which barred plaintiffs from recovery in cases where they knowingly and voluntarily encountered inherent risks, have generally disappeared under comparative negligence. See Guido Calabresi & Jeffrey O. Cooper, New Directions in Tort Law, 30 Val.Univ.L.Rev. 859, 868, 872, 876-77 (1996); Keeton, supra, at 477-78.

The doctrine of assumption of risk originally arose in the context of the master-servant relationship, whereby the agreement to become employed also included the agreement to assume the risks associated with that employment. See Hooper v. Columbia & Greenville R.R. Co., 21 S.C. 541, 546-47 (1884). Since its introduction into South Carolina law, courts have struggled to distinguish it from the doctrine of contributory negligence. E.g., Bodie v. Charleston &amp W.C. Ry. Co., 61 S.C. 468, 39 S.E. 715 (1901); Barksdale v. Charleston & W.C. Ry., 66 S.C. 204, 44 S.E. 743 (1903). The following passage is typical of their analysis:

The defense of assumption of risk and contributory negligence are so similar that they may fade into each other.... Nearly every case of contributory negligence on the part of an employee involves in a general sense some assumption of risk, because in order to be guilty of contributory negligence there must be the risk of apparent danger.... [If the employee] improperly risks the danger, ... it would be contributory negligence. Barksdale, 66 S.C. at 211, 44 S.E. at 745.

When the General Assembly enacted South Carolina's first workers' compensation law in 1935, the defenses of assumption of risk and contributory negligence no longer had application in the master-servant area. The doctrine of assumption of risk survived, however, when it was thereafter assimilated into the body of general negligence law. See, e.g., Smith v. Edwards, 186 S.C. 186, 195 S.E. 236 (1938). The contractual underpinnings which were important to the doctrine's utility in the employment law setting faded, and the defense became more a matter of implied consent than implied contract. Compare Daniel v. Tower Trucking Co., Inc., 205 S.C. 333, 348-49, 32 S.E.2d 5, 9 (1944) (stating assumption of risk rests in contract) with Senn v. Sun Printing Co., 295 S.C. 169, 173, 367 S.E.2d 456, 458 (Ct.App.1988) (stating assumption of risk turns on assent, voluntariness, and choice).

Courts continued, however, in their effort to distinguish the defense of assumption of risk from the doctrine of contributory negligence, while at the same time conceding their kinship. E.g., Cooper v. Mayes, 234 S.C. 491, 495-96, 109 S.E.2d 12, 15 (1959); Ruth v. Lane, 254 S.C. 431, 433-34, 175 S.E.2d 820, 821 (1970). As noted by Professors Hubbard and Felix, "South Carolina recognizes that assumption of risk and contributory negligence overlap." Hubbard & Felix, supra note 2, at 290.

Former Chief Judge of the South Carolina Court of Appeal Alexander M. Sanders, Jr., provided this insight into the connection between contributory negligence and assumption of risk:

The traditionally recognized distinction between the two defenses is that the former is a matter of some fault or departure from the standard of conduct of a reasonable person, while the latter is a matter of knowledge of a danger and voluntary acquiescence in it.

In some cases, a plaintiff may be acting reasonably in assuming a risk and thus not be negligent because the risk he assumes is outweighed by the advantage of his conduct. For example, if a plaintiff dashed into a fire because it was necessary to save his child, it might be argued that he assumed the risk of being injured but it could scarcely be argued that he acted unreasonably under the circumstances.

In other cases, the 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 he is seeking to gain. For example, if a plaintiff dashed into a fire to save his hat, it might 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.

Litchfield Co. of S.C., Inc. v. Sur-Tech, Inc., 289 S.C. 247, 249, 345 S.E.2d 765, 766 (Ct.App.1986) (citations omitted).

South Carolina's experience in adopting assumption of risk, first in the area of employment law, with its contractual trappings, and then as a tort concept based on principles of consent, is not unique. See, e.g., Tuttle v. Detroit, Grand Haven & Milwaukee Ry., 122 U.S. 189, 195-96, 7 S.Ct. 1166, 1168-69, 30 L.Ed. 1114 (1887); Rini v. Oaklawn Jockey Club, 861 F.2d 502, 504-05 (8th Cir.1988); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1126-27 (La.1988); Rutter v. Northeastern Beaver County Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1206 (1981). Nor were South Carolina courts alone in grappling with the...

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  • Davenport v. Cotton Hope Plantation
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