B. Contributory Negligence as a Total Bar to Recovery

• Library: South Carolina Damages (SCBar) (2009 Ed.)

B. Contributory Negligence as a Total Bar to Recovery

In order to better understand the doctrine of comparative negligence, it is important to first understand the law of contributory negligence. As noted above, South Carolina's doctrine of contributory negligence stated that, if a defendant could show the plaintiff contributed in any way to his own injury, the plaintiff was barred from recovery. Generally, the jury determined whether the plaintiff was contributorily negligent;¹² however, the judge could determine the matter if the evidence permitted only one reasonable inference¹³ or if the plaintiff knowingly stepped into a dangerous situation.¹⁴

1. Assumption of the Risk

Before the adoption of comparative negligence, South Carolina recognized a defense known as "assumption of the risk." This defense was distinguished from the defense of contributory negligence because it focused on whether the plaintiff knew of the danger and voluntarily acquiesced to the consequences rather than focusing on whether the plaintiff's conduct deviated from a reasonable person's standard conduct.¹⁵

a. Express Assumption of the Risk

A plaintiff can assume the risk either expressly or impliedly. Express assumption of the risk arises when the parties agree in advance that the defendant's legal duty to the plaintiff is relieved.¹⁶ If the plaintiff expressly assumes the risk, he cannot establish a negligence action because the defendant undertook no legal duty.

b. Implied Assumption of the Risk

Implied assumption of the risk arises when a plaintiff knowingly encounters a risk created by the defendant's negligence.¹⁷ Implied assumption of the risk can be further broken down into primary implied assumption of the risk and secondary implied assumption of the risk.

(1) Primary Implied Assumption of the Risk

Primary implied assumption of the risk arises when a plaintiff assumes a risk that is inherent in a particular activity.¹⁸ Thus, rather than being an affirmative defense, primary assumption of the risk goes to the issue of whether the defendant owed a duty to the plaintiff.¹⁹ For example, a football player who is injured after being tackled has no cause of action in negligence because, by having agreed to play football, the player implicitly assumed the risk of getting injured during the game.²⁰

(2) Secondary Implied Assumption of the Risk

Secondary implied assumption of the risk occurs when a plaintiff knowingly encounters a risk the defendant created.²¹ To establish this defense, the defendant must prove the following elements:

» The plaintiff had knowledge of the facts constituting a dangerous condition.
» The plaintiff knew the condition was dangerous.
» The plaintiff appreciated the nature and extent of the danger.
» The plaintiff's exposure to the danger was voluntary.²²

As with the defense of contributory negligence, if the defendant convinced the jury that the plaintiff assumed the risk, the plaintiff could not...