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Weaver v. Lentz3/4/2002
ff's recovery reduced in proportion to the amount of his or her negligence." Id. at 245, 399 S.E.2d at 784. The rule Weaver asserts had a valid purpose under the very different contributory negligence scheme; however, the validity of this rationale is undercut by the offset inherent in the comparative negligence framework.
Weaver argues the courts of this state have not specifically overruled the principle that simple contributory negligence is no defense to recklessness; thus the trial court erred in reducing the actual damage award by fifty percent. However, the trial judge instructed the jury, without objection, as follows:
In determining the respective negligence, if any, of the decedent and defendant, you must take the conduct of each party involved as a whole. In making this determination you should consider whether the conduct was merely careless or whether it was done consciously with an awareness that negligence was involved.... You must determine whether the negligence--whether the decedent or the defendant was merely negligent or careless or whether they were grossly negligent, reckless or consciously disregarded--consciously disregarded information that they should've considered in making their decisions.
The jury was instructed to apportion the respective negligence of each party by percentage if they concluded both were negligent and that such joint negligence proximately contributed to the plaintiff's injuries. The jury was given a separate instruction on punitive damages. Additionally, they made no specific finding that the defendant was willful, wanton, or reckless. As instructed, the jury considered the concepts of simple negligence, gross negligence, and recklessness as matters of degree subsumed within the general term "negligence."
In similar fashion, other concepts well recognized under the doctrine of contributory negligence have been held to have been subsumed within the concept of comparative negligence. Davenport v. Cotton Hope Plantation, 333 S.C. 71, 86-87, 508 S.E.2d 565, 573-74 (1998) (" bsolute defense of assumption of risk is inconsistent with South Carolina's comparative negligence system..."; unless assumption of risk can be characterized as express or primary implied assumption, plaintiff is not barred from recovery if degree of fault arising from assumed risk is less than defendant's negligence.). Spahn v. Town of Port Royal, 330 S.C. 168,173, 499 S.E.2d 205, 208 (1998) (Doctrine of "last clear chance has been subsumed by adoption of comparative negligence such that it remains a factor for the jury's consideration" in determining the respective fault of the parties but "does not totally relieve a plaintiff of his or her negligence."). See F. Patrick Hubbard & Robert L. Felix, Comparative Negligence in South Carolina: Implementing Nelson v. Concrete Supply Co., 43 S.C. L. Rev. 273, 282-283 (1992).
The jury performed its duties consistent with the unobjected-to instructions of the trial court, and the trial court appropriately exercised its duties pursuant to the concept of comparative negligence.
AFFIRMED.
HOWARD and SHULER, JJ., concur.
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