Vol. 3, No. 5, Pg. 36. Viewpoint: It's Time to Abolish Implied Assumption of Risk.

• Author: By F. Patrick Hubbard

South Carolina Lawyer

1992.

Vol. 3, No. 5, Pg. 36.

Viewpoint: It's Time to Abolish Implied Assumption of Risk

36Viewpoint: It's Time to Abolish Implied Assumption of RiskBy F. Patrick HubbardIt's time to abolish the doctrine of implied assumption of risk in South Carolina. This doctrine totally bars recovery for a plaintiff whose injury was caused by the defendant's negligence solely because the plaintiff knowingly and voluntarily encountered the risk of that negligence. F.P. Hubbard and R.L. Felix, The South Carolina Law of Torts 148-152 (1990) (SCLT).

Virtually every other state has concluded that a plaintiff should not be totally barred from recovery in such a situation. Many of those states have explicitly abolished the defense. Other states treat the requirements involved in assumption of risk as factors to be considered in their comparative fault schemes.

The reasons for abolishing this doctrine in are:

1. Where the risk is unreasonable, the doctrine is unnecessary, since the conduct is also contributorily negligent; and

2. Where the risk is reasonable, the doctrine is redundant of express assumption of risk or is question-begging, potentially unjust and confusing.

   The only remaining role for assumption of risk as a distinct doctrine is in those cases where an enforceable express consent to accept the risk of negligence is involved.

   Unreasonable Assumption of Risk: A Redundant and Unnecessary Doctrine

   One reason for abolishing assumption of risk as a distinct doctrine is that where the risk is unreasonable, the doctrine overlaps with contributory negligence and is, therefore, unnecessary as a defense. This overlap has been recognized in South Carolina. See SCLT 150-151.

   For example, Stogner v. Great Atlantic and Pacific Tea Co., 184 S.C. 406, 192 S.E. 406 (1937), recognized the overlap in the following manner:

   It has frequently been stated, and with good reason, that assumption of risk and contributory negligence are so closely allied that it is sometimes difficult to draw the true line of distinction. . . . [I]n a broad sense assumption of risk shades into contributory negligence, the difference being one of degree rather than kind. . . . It is also generally declared that the point where the two concepts approximate is where the danger is so obvious and imminent that no one of ordinary prudence would encounter it.

   184 S.C. at 411, 192 S.E. at 408 (emphasis added). Thus where the plaintiff assumes a risk that is unreasonable, the conduct is also negligent.Collins & Son Fine Jewelry, Inc. v. Southeastern Sec. Sys., Inc., 296 S.C. 219, 234, 371 S.E.2d 539, 548 (Ct. App. 1988) ("Where the defenses of contributory negligence and assumption of risk overlap, the trial court may properly limit its instructions to contributory negligence"). Given this overlap, assumption of risk is redundant and unnecessary as a separate defense.

   The unreasonable conduct is not necessarily the same as recklessness, however. Where a plaintiff...