The typical defenses asserted in South Carolina premises cases are comparative negligence, assumption of the risk (which is considered an element of comparative negligence), open and obvious condition, and intervening and superseding negligence. It appears in the present case the jury found the dangerous and condition was not a proximate cause of the unfortunate fall and Foley’s own negligence in being unaware of his surroundings was to blame. New York follows a pure comparative negligence system, while South Carolina follows a modified comparative negligence system. Because the jury found the property owner created a dangerous condition, yet found it was not a proximate cause of the fall but his inattentiveness was to blame, this same result would have occurred under South Carolina law.
On its face, the facts of this case certainly presented a risk in moving forward with trial, although the stipulation capping damages provided some relief. However, it was the affirmative defenses which told the rest of the story and ultimately prevailed.