You fell on a stairway you had complained about for weeks. You were hurt on a boat charter, at a climbing gym or a trampoline park after signing a form on a tablet at the front desk. Now the business, or its insurer, says you “assumed the risk” and there is nothing to talk about. Assumption of risk in South Carolina is a real doctrine, but it has not been an automatic bar to recovery for more than twenty-five years, and the phrase is used far more often than it applies.

What assumption of risk in South Carolina used to mean

Under the old rule, a person who knew of a danger and voluntarily encountered it could recover nothing, however careless the other side had been. The classic example is the one the Supreme Court decided: a Hilton Head condominium resident who had reported for weeks that the floodlights on his stairway were out kept using the stairway anyway, mistook a shadow for a step and fell. The property argued that because he knew the lights were out, he had assumed the risk and the case should end there.

What Davenport changed

The Supreme Court disagreed. In Davenport v. Cotton Hope Plantation it reasoned that an all-or-nothing defense “is incompatible with our comparative fault system,” that a plaintiff’s conduct in assuming a risk “can be compared with the defendant’s negligence,” and that abolishing the absolute bar would not encourage people to take unnecessary risks. Its holding was direct:

“A plaintiff is not barred from recovery by the doctrine of assumption of risk unless the degree of fault arising therefrom is greater than the negligence of the defendant.”

Any earlier South Carolina case to the contrary was overruled, and the Court applied the new rule to the case in front of it rather than only to future cases.

In practice that folds assumption of risk into South Carolina’s comparative negligence rule from Nelson v. Concrete Supply Co.: the jury assigns each side a percentage, an injured person whose share is not greater than the defendant’s recovers that reduced amount, and only a share above fifty percent ends the claim. S.C. Code § 15-38-15 governs how the percentages are set. So the resident who kept using the dark stairway did not lose his case for knowing about the lights; the question became how much of the fault was his and how much belonged to the owner who left the lights out for two months. Our explainer on the types of negligence South Carolina recognizes covers where comparative fault fits.

What Davenport left in place

The Court was careful to say that two forms of the doctrine “remain unaffected.” The first is express assumption of risk: an agreement, written or spoken, made in advance, that relieves the other side of its duty to you. That is the waiver at the front desk, and it is discussed below. The second is what the law calls primary implied assumption of risk, which applies where the defendant owed you no duty to protect you from a particular risk in the first place, because the risk is inherent in the activity itself. Being struck by a foul ball at a baseball game is the textbook example: the operator’s duty does not extend to eliminating a risk that is part of the game. Neither of these is a defense in the ordinary stairway, parking-lot or store case, where the owner plainly owed a duty and the only question is who was careless.

“But I signed a waiver”

A waiver is an attempt to create express assumption of risk by contract, and Davenport did not touch it. Whether a particular waiver protects a particular business from a particular claim depends on what the document says, how clearly it says it, what activity and what kind of carelessness it covers, and who signed it. Waivers are read closely, and a release drafted to cover the inherent risks of an activity is not the same as one that clearly excuses the operator’s own negligence. Do not conclude that the form ends your claim, and do not conclude that it is meaningless. Bring it to a lawyer, along with anything you were told when you signed it.

Two situations come up often in the Lowcountry. Rental and charter operators on the water routinely use waivers; our post on who is liable in a South Carolina boating accident covers how those claims work. And parents are asked to sign for children at gyms, camps and parks; what a parent can sign away on a child’s behalf is a separate question that should be raised with counsel rather than assumed either way.

How the defense is used in real cases

• —The insurer’s letter says you “assumed the risk” and closes the file. Read it as an opening position. After Davenport that phrase describes an argument about percentages, not a rule that ends the case.
• —The defense is raised for a danger you could not have appreciated. Assumption of risk has always required actual knowledge of the specific risk, not the general possibility that something could go wrong. A hidden defect is not a risk anyone assumed.
• —Your own care is the real issue. Whether you used the handrail, wore the harness or followed the instructions goes to your percentage of fault, and the evidence on that point should be gathered early: photographs, the incident report, witness names and the operator’s own rules.
• —Damages are argued down rather than denied. Once fault is shared, the value of the claim depends on proving the injury fully. The damages you can claim in a South Carolina personal injury case are the same whether or not fault is shared; only the percentage changes.

Frequently asked questions

Is assumption of risk still a defense in South Carolina?

Not as a complete defense to negligence. Since Davenport, knowingly taking a risk is weighed as part of your comparative fault, and you recover unless your share is greater than the defendant’s. Express agreements and risks inherent in an activity are treated differently.

I signed a waiver on a tablet. Can I still sue?

Possibly. The answer depends on the waiver’s wording, what it covers and how the injury happened. A lawyer needs to read it before anyone can say.

I knew the stairs were dark and used them anyway. Do I have a case?

That is almost exactly the Davenport case, and the resident was allowed to go to a jury. Your knowledge counts against you in the percentage, but it does not end the claim by itself.

Does this apply to car accidents too?

The same comparative fault rule governs every negligence claim, including getting into a car with a driver you knew was impaired; that is argued as a share of fault, not as a bar.

How long do I have to file?

Generally three years from the injury under S.C. Code § 15-3-530, and shorter where a government entity owns the property or runs the activity.

Talk to a Charleston personal injury attorney before accepting “you assumed the risk”

The phrase is meant to end the conversation. In South Carolina it starts one about percentages, and the evidence that sets those percentages disappears quickly. Klok Law handles injury claims across Charleston, Mount Pleasant, Berkeley and Dorchester counties; our post on why you need a lawyer after an accident explains what the first meeting covers. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.