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Simmons v. Porter

Supreme Court of Kansas

November 8, 2013

ADAM SIMMONS, Appellant,
v.
RICHARD W. PORTER and SARAH M. PORTER, d/b/a PORTER FARMS, Appellees

Page 346

[Copyrighted Material Omitted]

Page 347

Review of the judgment of the Court of Appeals in 45 Kan.App.2d 177, 245 P.3d 1091 (2011).

Appeal from Lyon District Court; W. LEE FOWLER, judge.

SYLLABUS

BY THE COURT

1. In Kansas, the assumption of risk doctrine has operated as an affirmative defense in the limited context of employer-employee relationships that are not subject to the Kansas Workers Compensation Act, K.S.A. 44-501 et seq.

2. The assumption of risk doctrine is premised on a view that there is an express or implied agreement within the employer-employee relationship that the employee accepts the risk of known dangers to which the employee is exposed as a part of the work.

3. The assumption of risk doctrine may bar recovery when an employee who knew of a dangerous situation voluntarily exposed himself or herself to it when the risk was known to or discoverable by the employee through reasonable observation or caution for his or her own safety.

4. A court of last resort will follow the rule of law it established in its earlier cases unless clearly convinced that rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.

5. Since the enactment of comparative fault, K.S.A. 60-258a(a) has provided that contributory negligence will not prevent a plaintiff from recovering damages if that plaintiff's negligence was less than the causal negligence of the other parties to the occurrence. Instead, the plaintiff's damages will be diminished in proportion to the amount of negligence attributed to the plaintiff.

6. The rationale for retaining the assumption of risk doctrine is no longer viable in Kansas given statutory comparative fault rules and subsequent caselaw. Prior caselaw applying the assumption of risk doctrine to bar recovery is overruled.

Jeffrey W. Jones, of Hamilton, Laughlin, Barker, Johnson & Watson, of Topeka, argued the cause and was on the briefs for appellant.

Craig C. Blumreich, of Larson & Blumreich, Chartered, of Topeka, argued the cause and was on the briefs for appellees.

BILES, J. LUCKERT, J., not participating. JOSEPH BRIBIESCA, District Judge, assigned. [1]

OPINION

Page 348

[298 Kan. 300] Biles, J.

Adam Simmons was seriously injured in a gasoline fire while at work. He sued his employer for negligently failing to provide him with a reasonably safe workplace. The district court denied his claim based on the common-law assumption of risk doctrine, which can bar recovery when an employee who knows of a dangerous situation voluntarily exposes himself or herself to that danger. The Court of Appeals affirmed based on existing precedent. Simmons v. Porter, 45 Kan.App.2d 177, 182-83, 245 P.3d 1091 (2011). Simmons argues we should abandon this court-made doctrine in favor of our state's statutory comparative fault system in which any alleged assumption of risk would be considered as just one factor when determining proportionality of fault based on the circumstances. We agree with Simmons.

Kansas caselaw has steadily narrowed the use of the assumption of risk doctrine. See Jackson v. City of Kansas City, 235 Kan. 278, 306, 680 P.2d 877 (1984) (describing the doctrine as having " a very restricted periphery of application" ); see also Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 96, 883 P.2d 1120 (1994) (when evidence does not conclusively show employee knew or ought to have known of the danger and its consequences, the issue is for the jury). And our review of the caselaw now convinces us the doctrine's retention in Kansas runs counter to the approach taken in the vast majority of comparative fault jurisdictions, which eliminated assumption of risk after comparative fault was adopted. See, e.g., Li v. Yellow Cab Co., 13 Cal.3d 804, 825, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975).

We hold the comparative fault statute should control, and now overrule our prior caselaw adhering to the assumption of risk doctrine [298 Kan. 301] as an absolute bar to recovery. We reverse and remand this case to the district court for reconsideration under the comparative fault rubric. See K.S.A. 60-258a.

Factual and Procedural Background

Simmons worked for Richard W. Porter and Sarah M. Porter, d/b/a Porter Farms, as a farm truck and machinery mechanic. In February 2004, Simmons was removing a leaky fuel tank from a 1978 Ford F-250 pickup truck. He used a 4-ton floor jack to raise the truck and a floor creeper to roll under the vehicle on his back. Simmons hung a shop light with an incandescent bulb from the pickup's frame for illumination. The tank was ...


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