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Apr 21, 2014

Kansas abolishes assumption of the risk defense.

ABSTRACT: Based on its adoption of a statutory scheme of comparative negligence, Kansas has abolished common law assumption of the risk as a bar to recovery. Simmons v. Porter, 298 Kan. 299, 312 P3d 345, 355 (Kan. 2013).

Plaintiff 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 then existing precedent. Simmons appealed the denial to the Kansas Supreme Court, and argued Kansas should abandon the court-made doctrine of assumption of the risk in favor of the Kansas 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.  K.S.A. §60-258a.

In doing so, the Kansas Supreme Court examined and explicitly overruled three previous Kansas Supreme Court holdings, cases, which had applied the doctrine in conjunction with comparative fault. The Court also examined and was persuaded by decisions from other jurisdictions that had eliminated assumption of risk after comparative fault was adopted.

The full opinion of the case may be found online here.