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Cole v. South Carolina Electric & Gas1/31/2005
SCE&G. The only charge specifically regarding assumption of the risk was to define it as a defense and then instruct: "If you find that . . .the plaintiff assumed the risk associated with this activity, then you would find for the defendant." The Court of Appeals found this charge was inadequate to properly instruct the jury regarding SCE&G's burden of proof and reversed on this issue. SCE&G contends this was error on the following grounds.
a. The Charge as a Whole was Sufficient
It is well-settled that assumption of the risk is an affirmative defense which the defendant bears the burden of proving. Baldwin v. Piedmont Mfg. Co., 102 S.C. 402, 86 S.E. 379 (1915); see also Englert, Inc. v. Netherlands Ins. Co., 315 S.C. 300, 433 S.E.2d 871 (1993) (defendant has burden of proving affirmative defenses listed in Rule 8(c), SCRCP); Rule 8(c), SCRCP (assumption of risk is affirmative defense).
The question here is whether the charge as a whole conveyed this burden to the jury. We agree with the Court of Appeals that it did not, especially in light of the instructions defining the plaintiff's burden of proof:
As the trial begins, the scales are even, but throughout the course of the trial as the testimony and the evidence comes in, the scales may tip back and forth. If after all of the evidence has been presented, the scales remain even or they tip ever so slightly in favor of the defendant, then the plaintiffs would not have satisfied their burden of proof in this particular matter.
By contrast, the charge regarding SCE&G's affirmative defense indicated only that the jury should "consider" SCE&G's defenses and if the jury found the plaintiff assumed the risk, it should find for SCE&G. This charge gave the jury no standard by which to determine if SCE&G had established its defense. The Court of Appeals properly found the charge inadequate.
b. Primary Implied Assumption of the Risk
SCE&G contends there was no need to charge assumption of the risk under the doctrine of "primary implied assumption of the risk." We disagree.
Primary implied assumption of the risk arises when the plaintiff impliedly assumes risks inherent in a particular activity. Davenport, 333 S.C. at 81, 508 S.E.2d at 570. It is not a true affirmative defense but is another way of stating there is no duty to the plaintiff. Id. We disagree SCE&G owed no duty here. A landowner has a duty to warn a licensee of concealed dangerous conditions or activities known to the landowner. Vogt v. Murraywood Swim & Racquet Club, 357 S.C. 506, 593 S.E.2d 617 (Ct. App. 2004). Despite immunity under the RUS, SCE&G may still be liable for gross negligence which is the failure to exercise even slight care. Clyburn v. Sumter County Sch. Dist. No. 17, 317 S.C. 50, 451 S.E.2d 885 (1994). Whether SCE&G met this standard of care in warning only that there was no lifeguard is a question of fact for the jury.
c. Harmless Error
SCE&G contends any error in the failure to charge the burden of proof is harmless because the jury must have concluded Cole failed to prove gross negligence. SCE&G bases this assertion on the fact that the only question put to the trial court by the jurors was regarding the distinction between negligence and gross negligence. This question, however, does not indicate the jury failed to consider assumption of the risk, especially since SCE&G's case basically turned on proving that George assumed the risk of swimming in Lake Murray.
d. Assumption of Risk as a Matter of Law
SCE&G contends George assumed the risk inherent in swimming in a nat
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