Simmons v. Porter

Decision Date08 November 2013
Docket NumberNo. 102,662.,102,662.
PartiesAdam SIMMONS, Appellant, v. Richard W. PORTER and Sarah M. Porter, d/b/a Porter Farms, Appellees.
CourtKansas Supreme Court


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.

The opinion of the court was delivered by 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 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 less than half full of gasoline when Simmons began working, and he did not drain that gasoline from the tank.

Before putting the jack under the truck, Simmons noticed the fuel tank was not secured with factory or replacement fastenings. On the front side was a plumbing strap wrapped around the tank and connected to the frame by a bolt. On the back, bailing wire was placed around the tank and frame. Simmons started using a pneumatic air-powered wrench to loosen the bolt securing the plumbing strap when the tank fell to one side, covering Simmons in gasoline. He quickly pushed himself out from underneath the vehicle, but his foot caught on the shop light, which fell from the pickup's frame. The incandescent bulb shattered, and the gasoline ignited.

Simmons sued Porter Farms for his injuries sustained in the fire. He claimed Porter Farms, as his employer, owed him a legal duty of care and skill to provide a reasonably safe place to work and that his injuries were proximately caused by the breach of that duty. His lawsuit was not barred by the Kansas Workers Compensation Act, K.S.A. 44–501 et seq., because Porter Farms, an independent farming and ranching business, qualified as an “agricultural pursuit” and Simmons' work was an “employment incident thereto.” See K.S.A. 44–505(a)(1). In its answer, Porter Farms raised assumption of risk as an affirmative defense as required by K.S.A. 2012 Supp. 60–208(c)(1)(C). The district court ordered bifurcated discovery with the first phase focusing on liability.

At a deposition on the liability issue, Simmons testified he had been aware of the potential fire hazard associated with removinga fuel tank. He also acknowledged knowing there was fuel in the tank before he began work; observing the plumbing strap that was in place; observing the bailing wire; and noticing only a single bolt secured the plumbing strap. Simmons said he had previously removed three or four fuel tanks from other Porter Farm vehicles before his injury.

Porter Farms filed a motion for summary judgment, arguing assumption of risk barred Simmons' negligence claim because he voluntarily exposed himself to a known danger. The crux of the argument was that even though Simmons claimed Porter Farms was negligent because it required him to work on a pickup with a fuel tank that was not safely secured, the uncontroverted facts demonstrated Simmons was the most experienced mechanic Porter Farms employed and was “fully” aware of the manner in which the fuel tank was mounted in the truck. Porter Farms argued Simmons had the knowledge and experience to appreciate the fire risk and was voluntarily removing the fuel tank despite his awareness of that risk.

Simmons responded that genuine issues of material fact precluded summary judgment. He added his own statement of uncontroverted facts, which included: he worked as an actual mechanic only for a year before joining Porter Farms; he removed only three or four fuel tanks at his previous job; his former employer furnished vehicle lifts and siphon pumps for removing fuel; and none of his other jobs required him to remove fuel tanks. He further claimed that because there was no lift to raise the pickup, he had to use a “regular” shop lamp with an incandescent bulb, which had a half-solid and half-open wire cage. He alleged he had not criticized Porter Farms before the accident for failing to provide him with a safe, cool, and enclosed shop lamp due to his limited training in auto mechanics. He also alleged that because of his lack of experience, he did not appreciate the increased danger posed by the “jerry-rigged” way the fuel tank was attached to the vehicle. Simmons also cited a letter from an expert witness, who detailed the proper method for removing a fuel tank. This witness claimed Porter Farms fell below the reasonable standard of care required for a safe work environment because it did not supply the workshop with a lift, equipment to drain the fuel tank, or a cool and enclosed shop lamp.

The district court determined the material facts were uncontroverted and granted Porter Farms' summary judgment motion. It found Simmons was in charge of how the repair was performed, had superior knowledge over Porter Farms, and assumed the risk of his injury. From this factual perspective, the district court held the assumption of risk doctrine barred Simmons' negligence claim.

Simmons appealed, arguing the assumption of risk doctrine should be overruled or, in the alternative, that disputed material facts prohibited summary judgment. The Court of Appeals affirmed the district court. In doing so, the panel did not delve deeply into Simmons' invitation to overrule the assumption of risk doctrine, citing its duty to adhere to this court's prior caselaw declining similar arguments. It also rejected Simmons' alternative contention that material fact issues barred summary judgment even if the doctrine remained applicable. Simmons, 45 Kan.App.2d at 182–83, 245 P.3d 1091.

We granted Simmons' petition for review pursuant to K.S.A. 20–3018(b) and K.S.A. 60–2101(b) as to three issues: (1) whether the common-law doctrine of assumption of risk should be abrogated or altered; (2) whether the Court of Appeals erred in its application of the doctrine, if it is not to be abrogated or altered; and (3) whether the Court of Appeals erred in holding no genuine issue of material fact precluded summary judgment. Because we abolish the assumption of risk...

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