D. Defenses

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

D. Defenses

The applicable statute of limitations is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.²⁵

Other defenses to Dram Shop liability include contributory negligence and assumption of the risk.²⁶

Contributory negligence is a defense in a negligence action that requires the defendant show the plaintiff was negligent²⁷ and that the negligence was the proximate cause of the injuries.²⁸ Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.²⁹

Assumption of the risk is a defense to negligence recognized in South Carolina in two forms: express assumption and implied assumption.³⁰ Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it.³¹ A plaintiff is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.³²

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Notes:

^[25] S.C. Code § 15-3-530.

^[26]Steele v. Rogers, 306 S.C. 546, 413 S.E.2d 329, 333 (Ct. App. 1992).

^[27]Taylor v. Bryant, 274 S.C. 509, 265 S.E.2d 514, 516 (1980) (contributory negligence generally means plaintiff's negligence contributed to injury as proximate cause without which injury would not have occurred); Pinkston v. Morrall, 236 S.C. 601, 115 S.E.2d 286 (1960), overuled on other grounds, 285 S.C. 243, 329 S.E.2d 741, 744 (1985); South Carolina Insurance Co. v. James C. Greene and Co., 290 S.C. 171, 348...