## Facts

- Cotton Hope operated a 96-unit condominium complex with exterior common stairways.
- Alvin Davenport, a tenant/resident, lived on the top level near a stairway he regularly used.
- Cotton Hope used a property manager, which hired a maintenance contractor responsible for exterior lighting, including checking lights and replacing bulbs as needed; the contractor agreed to indemnify Cotton Hope for losses caused by the contractor’s negligence.
- Beginning in June 1991, Davenport repeatedly reported to the property manager that floodlights at the bottom of his stairway were out, but the condition persisted.
- On August 12, 1991, Davenport fell while descending the stairway in darkness, testifying he misperceived a shadow as a step; he did not use the handrail.
- Davenport sued Cotton Hope for negligence; Cotton Hope pursued third-party contractual indemnity against the contractor.

## Issues

1. Whether implied assumption of risk remains a separate, complete bar to recovery after adoption of modified comparative negligence, or instead should be treated as comparative fault.
2. Whether Davenport’s knowing use of an unlit stairway made him more than 50% at fault as a matter of law, permitting a directed verdict for Cotton Hope.

## Decision

- The Supreme Court affirmed the court of appeals as modified and remanded for a new trial.
- Implied assumption of risk is not an absolute defense; it is analyzed within South Carolina’s modified comparative negligence system.
- Express assumption of risk remains a distinct, contract-based absolute defense.
- The directed verdict for Cotton Hope was improper because reasonable jurors could differ on whether Davenport’s fault exceeded Cotton Hope’s.
- Because the negligence claim should proceed to trial, the directed verdict disposing of Cotton Hope’s indemnity claim solely on the ground that there was nothing to indemnify could not stand on that rationale.

## Legal Principles

- Under South Carolina’s modified comparative negligence, a plaintiff is barred from recovery only if the plaintiff’s fault is greater than 50%.
- Implied assumption of risk (voluntary exposure to a known danger inferred from conduct) is subsumed into comparative negligence and is not a complete bar unless the plaintiff’s allocated fault exceeds the defendant’s.
- Express assumption of risk (clear contractual waiver or agreement) is treated as a contract defense and may still operate as a complete bar to negligence liability.
- Directed verdict is improper where evidence permits reasonable disagreement about fault allocation between plaintiff and defendant.

## Conclusion

South Carolina treats implied assumption of risk as part of comparative fault, not as an automatic bar, and requires juries to allocate responsibility unless the plaintiff’s fault exceeds 50% as a matter of law; express assumption of risk remains an absolute, contract-based defense.


Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 508 S.E.2d 565 (S.C. 1998)