Adam Simmons was seriously injured in a gasoline fire while at work. Pie 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,
Kansas caselaw has steadily narrowed the use of the assumption of risk doctrine. See Jackson v. City of Kansas City,
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)(l). In its answer, Porter Farms raised assumption of risk as an affirmative defense as required by K.S.A. 2012 Supp. 60-208(c)(l)(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 tire potential fire hazard associated with removing
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 tire most experienced mechanic Porter Farms employed and was “fully” aware of the manner in which the fuel tank was mounted in tire 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 un-controverted 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 ietter from an expert witness, who detailed the proper method for removing a fuel tank. This witness claimed Porter Farms fell below tire 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 uncon-troverted 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,
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 doctrine, it is unnecessary to consider the remaining issues.
Standard of Review
We are reviewing tire district court’s order granting Porter Farms’ summary judgment motion.
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled tojudgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal the court applies the same rules, and where the court finds that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Osterhaus v. Toth, 291 Kan. 759 , Syl. ¶ 1,249 P.3d 888 (2011).
But our threshold concern is whether we should overrule the common-law assumption of risk doctrine. Applicability of a common-law doctrine is a question of law over which this court has unlimited review. See David v. Hett,
“[O]nce a point of law has been established by a court, it will generally be followed by the same court and all courts of lower rank in subsequent cases when the same legal issue is raised. A court of last resort will follow that rule of law unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.” Miller v. Johnson,295 Kan. 636 , 653,289 P.3d 1098 (2012) (citing Rhoten v. Dickson,290 Kan. 92 , 112,223 P.3d 786 [2010]).
The Assumption of Risk Doctrine
The assumption of risk doctrine is a common-law affirmative defense to negligence. See Pullen v. West,
The doctrine is premised on a view that there is an express or implied agreement within the employer-employee relationship that an employee accepts the risk of known dangers to which the employee is exposed as a part of the work and takes responsibility for any resulting injury. Mechtley,
Assumption of risk has historically precluded recovery by plaintiffs who were injured on-the-job but who understood the risks they were undertaking. See Hernandez v. Bachand,
A third, and more contemporary, doctrine of comparative fault is a creature of statute. Under comparative fault, a plaintiff may recover damages so long as the plaintiffs negligence is less than the collective causal negligence of the other parties to the occurrence; but those damages are diminished in proportion to the plaintiff s own negligence. K.S.A. 60-258a.The Kansas Legislature enacted comparative fault in 1974. L. 1974, ch. 239, sec. 1. And despite minor changes to its language, the statute has remained substantively unchanged since its introduction. See L. 1976, ch. 251, sec. 4; L. 1987, ch. 221, sec. 1; L. 2010, ch. 135, sec. 132.
In adopting comparative fault, the legislature intended “to impose individual liability for damages based on the proportionate fault of all parties to the occurrence” giving rise to the injuries, even if one or more parties cannot be joined formally as litigants or be held legally responsible for their proportionate fault; Kennedy v. City of Sawyer,
The comparative fault statute expressly abolished contributory negligence, but is silent regarding assumption of risk. See K.S.A. 60-258a(a). The question before us is whether the legislature’s adoption of comparative fault should abrogate the assumption of risk doctrine. Our review of the caselaw from other jurisdictions .and treatises indicates that in those states with comparative fault systems, its introduction prompted many to abolish assumption of risk. See, e.g., Li,
In Jackson, injured firefighters sued their city employer and otiier firefighters after two fire trucks collided while on emergency runs from different fire stations to die same fire. The city claimed assumption of risk barred recovery because the firefighters assumed the risk of being injured in traffic accidents as part of the ordinaiy course of their employment—traveling from fire stations to fires. This court held the doctrine was not applicable under the facts, concluding “[a] collision between two fire trucks on emergency runs is, fortunately, a rare occurrence. We do not believe such a collision could be considered, as a matter of law, a usual risk of a fireman’s employment.”
The Jackson court’s holding that the doctrine did not bar the negligence claims made in that case should have ended its consideration of the matter. But it went on to address
In dicta, the Jackson court noted that prior to comparative fault’s enactment, Kansas courts had consistently distinguished between assumption of risk and contributory negligence, treating assumption of risk as a distinct concept. Therefore, the court concluded, it was reasonable to interpret the statute’s abrogation of contributory negligence as being unrelated to assumption of risk. To support this logic, the court further observed the legislature did not delete “assumption of risk” from the affirmative defenses set out in the general pleadings statute, K.S.A. 60-208(c), when that statute was amended after comparative fault was adopted.
“As shown by the cases heretofore cited the employer must, in essence, be negligence free as a condition to the successful assertion of the defense of assumption of risk. Therefore, when assumption of risk has been established there is no negligence to be compared between the employer and the injured employee.”235 Kan. at 305 .
This statement came back to haunt the court in Tuley, when it had to characterize it as a “sweeping generalization” made in dicta that “if interpreted literally, is not a correct statement of the law.”
In Tuley, the plaintiffs were current and former power plant employees who alleged acid rain damaged their vehicles parked outside the plant. They alleged the employer’s negligence caused the acid rain exposure. The employer asserted assumption of risk as an affirmative defense, and the district court granted summary judgment on that basis. On appeal, plaintiffs asked the court to reconsider the doctrine, arguing the rationale for retaining it “is no longer persuasive in that [the doctrine] has outlived its utility and . . . defeats the purpose of comparative fault legislation.”
In rejecting that suggestion, die Tuley court recounted the Jackson court’s explanation that contributoiy negligence and assumption of risk had traditionally been treated as separate concepts; that the comparative negligence statute remained silent on what effect comparative fault had on assumption of risk; and that the general pleading statute still enumerated assumption of risk as an affirmative defense.
Notably, the Tuley court undertook this analysis despite its holding that the employer “had no duty to furnish parking to its employees.”
This court has not revisited the question since, but we severely constricted die assumption of risk doctrine in Smith,
On appeal, die Smith court considered whether the district court should have decided as a matter of law whether assumption of risk barred recovery, rather than submitting the issue to the jury. After reviewing our caselaw, the Smith court defined its task as considering “whether the danger posed . . . was so obvious that Smith (or an ordinarily prudent person) must have known of it and whether he (or the ordinarily prudent person) must have appreciated the danger attending its use.”
Smith’s holding illustrates assumption of risk’s more recent and limited utility as an employer’s vehicle for securing a judgment as a matter of law. Smith essentially recognizes that determining when assumption of risk might apply as a matter of law actually requires the district court to analyze facts in the same way a jury would scrutinize them in assessing a plaintiff s comparative fault—a function that, if performed by the court, is inconsistent with our longstanding caselaw requiring such facts to be determined by a juiy. See Martell v. Driscoll,
In other words, when a defendant employer asks the district court to apply assumption of risk as a matter of law, e.g., on summary judgment, it is asking the court to function as a jury would in deciding whether the facts in a particular case demonstrate the danger at issue was (1) obvious; and (2) was or should have been as well known to the employee as to the employer. And Smith still also underscored that as a matter of tort law, an employer has a duty to provide a safe workplace and equipment. Smith,
The result from Smith prompted a pair of legal commentators to conclude the case “may sound the death knell of a meaningful assumption of risk defense,” explaining, in part, “the holding brings comparative fault into these workplace injury cases by allowing the juiy to find contributoiy negligence in lieu of assumption of risk.” Westerbeke & McAllister, Survey of Kansas Tort Law: Part I, 49 Kan. L. Rev. 1037, 1132 (2001). More specifically, under Smith a district court is hard-pressed to determine whether assumption of risk bars a plaintiff s negligence claim as a matter of law and instead is more likely to submit the entire case to the juiy with instructions to either (1) find the plaintiff assumed the risk and deny recovery or (2) resolve the case under comparative negligence principles.
A majority of comparative fault jurisdictions have resolved similar conflicts by modifying or abolishing assumption of risk as a defense. See, e.g., Murray v. Ramada Inns, Inc.,
The Murray court, similar to the Jackson and Tuley courts, also addressed the argument that assumption of risk should survive because the legislature was silent after enacting the comparative fault statute. But the Murray court rejected this contention, noting it was just as reasonable to argue that, if the legislature had intended to preserve assumption of risk as a bar to recovery it could have codified the doctrine in statute. In other words, any ambiguity regarding what legislative inaction may signal concerning the judicially created doctrine cut both ways.
What was clear, the Murray court continued, was that the legislature intended to eliminate contributory negligence as a complete bar to recovery. Beyond that, the court said, the legislature effectively left the “tough details” about comparative fault’s scope to the courts. But the court also reasoned that “ ‘the intent of the statute should not be frustrated by the unfortunate practice of describing certain plaintiffs’ conduct as ‘assumption of the risk.’ ” The court held that applying comparative fault and considering a plaintiffs awareness of any danger among the other factors analyzed when apportioning fault makes the inherent inequities resulting from the doctrine’s “all or nothing” recovery rule disappear.
Likewise, the Idaho Supreme Court considered the continuing viability of assumption of risk in light of Idaho’s comparative fault statute and its legislature’s silence on the doctrine’s fate. Salinas,
“The policy of insulating business from ‘human overhead,’ however valid it may have been during the infancy of the Industrial Revolution, is diametrically opposed to current social policy and thought, which is to promote safety and protect the employee in his or her working environment. Furthermore, the ‘all-or-nothing’ effect of application of the assumption of risk defense is inequitable. It runs counter to all sense of reason and fairness .... The scope of [the Idaho comparative fault statute] is broad. It is not limited to certain types of action; it is not limited by exceptions. Rather, it covers any action in which the plaintiff is seeking to recover on grounds of negligence. [The statute’s] intent is clear: Contributory negligence is not to be a complete bar to recovery; instead, liability is to be apportioned between the parties based on the degree of fault for which each is responsible.
“. . . To hold otherwise, would be to perpetuate a gross legal inconsistency by prohibiting the use of contributory negligence as an absolute bar yet allow its effect to continue under the guise of assumption of risk.”107 Idaho at 989 .
Many other courts have taken a similar approach in abandoning assumption of risk because of comparative fault’s enactment in their states. See, e.g., Li,
We find the rationale in these cases compelling and are now clearly convinced preserving assumption of risk as a complete bar to recoveiy is no longer sound and should be of no practical effect given the statutory scheme of comparative fault. Our willingness to overrule Jackson and Tuley partially rests on our confusion as to why these courts addressed the issue. See Miller,
Applying this conclusion to the case at hand, we hold the district court erred when it granted Porter Farms’ motion for summary judgment on the basis that Simmons assumed the risk from which his injuries followed, i.e., the bar occasioned by the assumption of risk doctrine. We reverse the Court of Appeals decision affirming the judgment of the district court. The case is remanded to the district court for consideration of Simmons’ negligence claims under the principles of comparative fault.