§ 23-8 Comparative Negligence - Doctrine of Assumption of Risk

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 23-8 Comparative Negligence - Doctrine of Assumption of Risk

A. Elements

There are four requirements to establishing 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.

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. Assumption of risk may be implied from the plaintiff's conduct.

B. Express Assumption of Risk

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 legal duty toward the plaintiff. Thus, being under no legal duty, the defendant cannot be charged with negligence. The reason for this is that express assumption of risk sounds in contract, not tort, and is based upon an express manifestation of consent.

NOTE: In Davenport v. Cotton Hope Plantation Horizontal Property Regime, 333 S.C. 71, 87, 508 S.E.2d 565, 574 (1998), the Supreme Court held: "Express and primary implied assumption of risk remain unaffected by our decision."

C. Implied Assumption of Risk

Implied assumption of risk arises when the plaintiff implicitly, rather than expressly, assumes known risks. Implied assumption...