 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cole v. South Carolina Electric & Gas1/31/2005
ural body of water and since his fault was greater than 50%, the case should not be remanded for a new trial.
There are four requirements to establishing the defense of assumption of risk: (1) the plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger. Davenport, 333 S.C. 79, 508 S.E.2d 569. According to Cole's expert witness, the warning simply stating there was no lifeguard was insufficient notice of the danger involved. There remains a factual issue whether George was sufficiently warned of the danger to have legally assumed the risk of swimming in Lake Murray. SCE&G has not established assumption of the risk as a matter of law.
2. Effect of Regulation 61-50
At trial, Cole introduced evidence that at the time of George's drowning, DHEC Regulation 61-50 required the use of lifeguards and lifesaving equipment. SCE&G responded with evidence of a 1978 administrative ruling exempting it from this requirement. In 1980, the regulation was amended. The issue at trial was whether SCE&G's exemption remained valid under the amended regulation.
Rather than decide this issue, the trial judge ruled it would be submitted to the jury as a factual issue. In charging the jury, however, the trial judge charged only that evidence of a violation of a regulation is evidence of negligence. Cole appealed, contending the trial judge should have decided whether the regulation applies as a matter of law. SCE&G argued in response that the regulation conflicts with the RUS and therefore as a matter of law it does not apply regardless of whether the 1978 exemption remained valid. Rather than resolve this issue, the Court of Appeals concluded any error was harmless because the trial judge's charge instructed the jury to determine whether the regulation was violated, an instruction that was favorable to Cole who therefore could not show prejudice on appeal.
SCE&G contends the Court of Appeals should have addressed whether the regulation applies as a matter of law to resolve whether on remand a violation should be charged as evidence of negligence. We agree and find as a matter of law the regulation does not apply.
The purpose of the RUS as stated in the statute is "to encourage owners of land to make land and water areas available to the public for recreational purposes." ยง 27-3-10. Under the RUS a landowner's liability is limited to gross negligence, which is defined as the failure to exercise slight care. Clyburn, supra. By contrast, Regulation 61-50, as it read at the time this cause of action arose, imposed "owner responsibility" for lifeguards and lifesaving equipment and subjected the violator to fines and imprisonment. This regulation, as applied, conflicts with the RUS since a qualifying landowner under the RUS has a duty to exercise only slight care. A duty to provide recreational safety features such as lifeguards and lifesaving equipment exceeds this "slight care" standard. Since a regulation cannot alter or add to a statute, Regulation 61-50 does not apply. See McNickel's, Inc. v. S.C. Dep't of Rev., 331 S.C. 629, 503 S.E.2d 723 (1998).
In sum, on remand a violation of Regulation 61-50's safety provisions should not be charged as evidence of negligence since SCE&G has no duty under the RUS to exercise more than slight care.
AFFIRMED AS MODIFIED.
WALLER, BURNETT, PLEICONES, JJ., and Acting Justice James W. Johnson, Jr., concur.
Page 1 2 3 4 South Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|