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Simmons v. Porter - 298 Kan. 299, 312 P.3d 345 (2013)


Assumption of risk should be of no practical effect given the statutory scheme of comparative fault.


Plaintiff employee was seriously injured in a gasoline fire while at work. He sued defendant employer for negligently failing to provide him with a reasonably safe workplace. The district court denied the claim based on the common-law assumption of risk doctrine, which could bar recovery when an employee who knows of a dangerous situation voluntarily exposes himself or herself to that danger. The appellate court affirmed the district court’s judgment based on existing precedent. On further appeal, the state supreme court reversed the appellate court’s judgment.


Should the common-law assumption of risk doctrine be abandoned in favor of the 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?




The common-law assumption of the risk doctrine did not apply because the adoption of comparative fault Kan. Stat. Ann. § 60-258a(a) abrogated the assumption of risk doctrine. The doctrine's retention runs counter to the approach taken in the vast majority of comparative fault jurisdictions, which eliminated assumption of risk after comparative fault was adopted.

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