Express assumption of risk is contrasted with implied assumption of risk which arises when the plaintiff implicitly, rather than expressly, assumes known risks. Implied assumption of risk is characterized as either primary or secondary. Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity. Primary implied assumption of risk is not a true affirmative defense, but instead goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff.
A comparative negligence case was filed arising out of an accident in which Davenport, was injured while descending a stairway near his apartment. The owners of the apartment building brought a third-party claim against the company contracted to do landscaping and general maintenance work at the condominiums. The trial court directed a verdict against Davenport, finding he had assumed the risk of injury adopting South Carolina's comparative negligence analysis. On appeal, the property regime argued that the justification behind assumption of risk was not in conflict with South Carolina's comparative fault system.
Is Davenport’s recovery barred for assuming the risk of injury?
Assumption of the risk does not automatically bar recovery, however, it bars recovery when a plaintiff’s assumption of the risk is greater than the defendant’s. In this case, the court found that plaintiff’s negligence in using the stairway despite the broken light did not exceed the negligence of the building operators. A new trial was ordered by the appellate court.