DAVENPORT V. COTTON HOPE PLANTATION case brief

DAVENPORT V. COTTON HOPE PLANTATION

• Pl falls on stairs that Def didn’t replace the lights on

• trial court holds for D, citing assumption of risk and contributory neg. appeals ct. reversed

• supreme ct. of SC ponders whether assumption of risk can bar recovery in a comparative negligence system.

• 4 requirements to assumption of risk: Pl must have knowledge of the facts creating a danger; must know of the danger; must appreciate the nature and context of the danger; and must voluntarily expose themselves to the danger.

• majority rule holds that assumption of risk is not a complete bar to recovery.

• primary vs. secondary implied assumption of risk

• Primary: When the pl impliedly assumes those risks that are inherent in a particular activity: see cardozo and coney island flopper case.

• Secondary: when the pl knowingly encounters a risk created by the defendant’s negligence.

• express and primary implied A of R are compatible with comparative negl.

• court adopts the west Virginia model of not allowing A of R as a bar to recovery and only allowing a jury to consider the pls negl in assuming the risk.

• holds that pl is not barred from recovery unless the degree of fault is greater than D’s.