Kansas Supreme Court Abandons Assumption of the Risk Doctrine in Case Involving Farm Employee Personal Injury Actions

February 20, 2014 | Roger A. McEowen and Kristine A. Tidgren

Simmons v. Porter, 312 P.3d 345 (Kan. 2013)

The Kansas Supreme Court recently overruled long-standing case law and declared that the assumption of the risk doctrine is no longer a complete bar to recovery in a farm employee’s personal injury action against an employer.

Kansas has long allowed employers to assert the affirmative defense of assumption of risk in a narrow category of cases involving employee personal injury actions not covered by the Kansas Workers Compensation Act (Act).  Kansas farms and ranches have always been exempt from the Act.  In such cases, the assumption of risk doctrine could 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.” The doctrine was premised on the view that there was an express or implied agreement between the employer and the employee that an employee accepted the risk of known dangers and took responsibility for them.

Although the Kansas legislature enacted a comparative fault statute in 1974 (see, e.g., Kan.Stat. Ann. §60-258a), Kansas courts still applied the assumption of risk doctrine  in employer-employee actions not subject to the Act. In fact, the Kansas Supreme Court had twice reaffirmed application of the doctrine after the passage of the Act. See Jackson v. City of Kansas City, 235 Kan. 278, 306, 680 P.2d 877 (1984)( assumption of risk “remains viable and continues to constitute an absolute bar to recovery by an injured employee.”) and Tuley v. Kansas City Power & Light Co., 252 Kan. 205, 210, 843 P.2d 248 (1992)(court stated that it was "unwilling to abolish the doctrine because the legislature has given no indication it desires to do so”).

The question again came before the Kansas Supreme Court in the present case after a farm employee was seriously injured in a gasoline fire while removing a fuel tank from a pickup truck in the course of his employment. The tank had not been drained, was half full, and had been held in place at least in part by baling wire.  The employee started to remove the tank with power tools, but the tank began to leak covering the employee in gasoline.  When he tried to get out from under the truck, an incandescent light was dislodged from the truck’s frame and broke, triggering the fire.  The employee suffered severe burns.  He sued his employer, arguing that the employer negligently failed to provide him with a reasonably safe workplace. The employment was not covered by workers compensation because the employer was an “independent farming and ranching business” engaged in an “agricultural pursuit.” The district court granted summary judgment to the employer, finding that the assumption of risk doctrine applied to bar the employee’s recovery.  The court noted that the employee had the most knowledge about removing gas tanks than did any other employee, and that the employee had provided deposition testimony that he understood the risks associated with removing the tank. The court of appeals affirmed.

On appeal to the Kansas Supreme Court, the employee urged that the Court should abandon the common law doctrine in favor the state's statutory comparative fault system – which was enacted almost 40 years earlier. Under this system, any alleged assumption of risk would be considered as just one factor when determining proportionality of fault based on the circumstances.

The Kansas Supreme Court agreed with the employee. The Court found that retaining the assumption of the risk doctrine ran counter to the approach taken in the vast majority of comparative fault jurisdictions.  In those jurisdictions, the assumption of risk doctrine was eliminated after a comparative fault statute was enacted.

The Court criticized its two prior decisions that had affirmed the continuing validity of the doctrine after enactment of the comparative fault statute (Jackson and Tuley). The Court in these cases had relied on the fact that the legislature was silent as to assumption of the risk when drafting the comparative fault statute. Consequently, the earlier courts had found--based upon this legislative silence—a legislative intent to retain the doctrine.

The Court noted that other jurisdictions that had considered the very same question had reached the opposite conclusion: Passage of a comparative fault statute by the legislature expressed a clear intent by the legislature to abandon the doctrine. The Court found the latter rationale “compelling,” and noted that it did not understand why Jackson and Tuley even addressed the question, given that their holdings did not even depend upon on such a finding.

Based upon this reasoning, the Court expressly overruled prior case law applying the assumption of risk doctrine as an absolute bar to an employee’s recovery. The Court also reversed the lower court’s holding and remanded the case for reconsideration under the Kansas comparative fault statute, K.S.A. 60-258a.

As noted above, this case specifically applies only to the narrow set of employee-employer cases not governed by workers compensations laws.  However, Kansas farms and ranches are directly impacted by the Court’s change in Kansas law.  Given the potential for tort liability with respect to an employee’s actions, it is plausible to believe that farm and ranch operations will seek to be covered by the Act.  Farmers and ranchers can elect to be covered pursuant to K.S.A. 44-505(b)(2).  Clearly, in this case, the Court assumed the legislative function.  It is hard to understand why--40 years after the Act was enacted and the Court had issued prior opinions upholding the assumption of risk doctrine--the Court chose to change the law.