Davenport (Plaintiff) sued Cotton Hope Plantation Horizontal Property Regime (Defendant), his landlord, when he was injured in a fall on a stairway where the light was out. Defendant argued that because Plaintiff knew the light was out and used the stairway anyway, he had assumed the risk, barring recovery.
Assumption of the risk is not an absolute bar to recovery and only bars a plaintiff’s recovery when the plaintiff’s fault in assuming the risk is greater than the defendant’s negligence.
Plaintiff reported to his apartment building management that a floodlight in a stairway near his apartment was not working. Plaintiff used the stairway anyway and was injured in a fall. Plaintiff then sued Defendant, the landlord. Defendant argued that Plaintiff had assumed the risk when he used the stairway knowing that the light was out. Defendant also argued that if the court applied comparative negligence, Plaintiff was more negligent as a matter of law. Defendant moved for a directed verdict and the trial court granted it. The appellate court reversed and the state Supreme Court granted review.
Is recovery barred for a plaintiff under the assumption of risk doctrine if the plaintiff’s negligence in assuming the risk is less than the defendant’s?
(Toal, J.) No. Assumption of the risk is not an absolute bar to recovery and only bars a plaintiff’s recovery when the plaintiff’s fault in assuming the risk is greater than the defendant’s negligence. Here, it would be reasonable to find that Plaintiff’s negligence in using a stairway he knew to have a light out did not exceed Defendant’s negligence. The appellate court decision to remand for a new trial was correct. Assumption of risk is abolished as an absolute bar to recovery. Reversed and remanded.
The court discussed the varied approaches taken by other states on assumption of the risk. Express assumption of risk is a contract theory, instead of a torts theory, and therefore can still be plead as an absolute defense to a claim of negligence.