assumption of risk doctrine in Kansas

1967In discussing the doctrine of assumption of risk, this court in Kleppe v. Prawl, 181 Kan. 590, 594 , 313 P.2d 227 , 63 A.L.R.2d 175 , had this to say: "... assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful t

1967In discussing the doctrine of assumption of risk, this court in Kleppe v. Prawl, 181 Kan. 590, 594 , 313 P.2d 227 , 63 A.L.R.2d 175 , had this to say: "... assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful t

2011The court in Lively v. Railway Co., 115 Kan. 784, 789 , 225 Pac. 103 (1924), acknowledged the painful re.alityof the assumption of risk doctrine, but insisted on the necessity of permitting the legislature to alter the situation if it so chooses: “It is also a part of the doctrine of assumption of risk that a workman’s recourse, when called upon to perform a task too heavy or too dangerous for his capacity, is to quit his employment.

2011The court in Lively v. Railway Co., 115 Kan. 784, 789 , 225 Pac. 103 (1924), acknowledged the painful re.alityof the assumption of risk doctrine, but insisted on the necessity of permitting the legislature to alter the situation if it so chooses: “It is also a part of the doctrine of assumption of risk that a workman’s recourse, when called upon to perform a task too heavy or too dangerous for his capacity, is to quit his employment.

2017But then, inexplicably, the Calvert court concluded, with no discussion or analysis, that the "the firefighter's rule" could not be explained in Kansas as a standard limiting the scope of duty owed to firefighters because earlier precedent from our court had restricted "the doctrine of assumption of risk . . . to cases where a master/servant relationship is involved." 236 Kan. at 574 .

2017For example, Calvert claims that its "rule" means that firefighters "assume[] hazards which are known and can be reasonably anticipated at the site of the fire and are a part of fire fighting"—an articulation that sounds remarkably like the doctrine of primary assumption of risk. 236 Kan. at 576 .

1967In four decisions of recent vintage ( Blackmore v. Auer, supra, Anderson v. Cooper, 192 Kan. 723 , 391 P.2d 86 ; Uhlrig v. Shortt, 194 Kan. 68 , 397 P.2d 321 ; and Wilson v. Deer, 197 Kan. 171 , 415 P.2d 289 ) we have dealt at some length with the assumption of risk doctrine in relation to injuries resulting to farm laborers from dangerous and unsafe equipment furnished by their employers.

1967In four decisions of recent vintage ( Blackmore v. Auer, supra, Anderson v. Cooper, 192 Kan. 723 , 391 P.2d 86 ; Uhlrig v. Shortt, 194 Kan. 68 , 397 P.2d 321 ; and Wilson v. Deer, 197 Kan. 171 , 415 P.2d 289 ) we have dealt at some length with the assumption of risk doctrine in relation to injuries resulting to farm laborers from dangerous and unsafe equipment furnished by their employers.

2011The Minnesota Supreme Court has made a comprehensive analysis of this theory in Armstrong v. Mailand, 284 N.W.2d 343 (Minn. 979).

1985The Minnesota Supreme Court has made a comprehensive analysis of this theory in Armstrong v. Mailand, 284 N.W.2d 343 (Minn. 1979).

1984Blackmore v. Auer, 187 Kan. 434, 442 , 357 P.2d 765 . “ ‘Many of the rules just announced are no doubt a result of the application of the doctrine of assumption of risk.

1984Blackmore v. Auer, 187 Kan. 434, 442 , 357 P.2d 765 . “ ‘Many of the rules just announced are no doubt a result of the application of the doctrine of assumption of risk.

1984(See Kleppe v. Prawl, 181 Kan. 590 , 313 P.2d 227 ; Smith v. Blakey, Administrator, 213 Kan. 91 , 515 P.2d 1062 .) Assumption of risk and contributory negligence being separate and distinct concepts in this state, the former remains a complete bar to recovery in cases such as here involved.” 1 Kan.

1979Borth v. Borth, 221 Kan. 494 , 561 P.2d 408 (1977); George v. Beggs, 1 Kan.

1977And, therefore, the doctrine of assumption of risk applies, that the employee assumed the ordinary risk of his employment.” Plaintiff argues that this finding of the trial court “flies in the face of the evidence itself” and cites the case of Uhlrig v. Shortt, 194 Kan. 68 , 397 P.2d 321 , in support of one of the rules deemed applicable to the facts of that case: “There can be no liability on the part of the employer where it appears that the employee’s knowledge of the danger was equal to or surpassed that of the employer. . . .” ( 194 Kan. at 72 .) Plaintiff states that although he had perfo

1977And, therefore, the doctrine of assumption of risk applies, that the employee assumed the ordinary risk of his employment.” Plaintiff argues that this finding of the trial court “flies in the face of the evidence itself” and cites the case of Uhlrig v. Shortt, 194 Kan. 68 , 397 P.2d 321 , in support of one of the rules deemed applicable to the facts of that case: “There can be no liability on the part of the employer where it appears that the employee’s knowledge of the danger was equal to or surpassed that of the employer. . . .” ( 194 Kan. at 72 .) Plaintiff states that although he had perfo

2026Since FELA's enactment, courts have liberally construed its provisions in light of its "'humanitarian'" and "'remedial goal[s].'" CSX Transp., Inc. v. McBride, 564 U.S. 685 , 691-92, 131 S. Ct. 2630 , 180 L.

2026Since FELA's enactment, courts have liberally construed its provisions in light of its "'humanitarian'" and "'remedial goal[s].'" CSX Transp., Inc. v. McBride, 564 U.S. 685 , 691-92, 131 S. Ct. 2630 , 180 L.

2011In Mechtley v. Price, 217 Kan. 344, 349 , 536 P.2d 1385 (1975), appellants claimed the assumption of risk defense was not available to appellees because they had promised to remedy the defect after being advised of the defect by appellant.

2011In Mechtley v. Price, 217 Kan. 344, 349 , 536 P.2d 1385 (1975), appellants claimed the assumption of risk defense was not available to appellees because they had promised to remedy the defect after being advised of the defect by appellant.

2011See Baker v. Superior Court, 129 Cal. App. 3d 710 , 181 Cal. Rptr. 311 (1982); Krauth [v. Geller], 31 N.J. 270 [, 157 A.2d 129 (1960)].

2011See Baker v. Superior Court, 129 Cal. App. 3d 710 , 181 Cal. Rptr. 311 (1982); Krauth [v. Geller], 31 N.J. 270 [, 157 A.2d 129 (1960)].

1979Borth v. Borth, 221 Kan. 494 , 561 P.2d 408 (1977); George v. Beggs, 1 Kan.

1979Borth v. Borth, 221 Kan. 494 , 561 P.2d 408 (1977); George v. Beggs, 1 Kan.

1975Co., 151 Kan. 638 , 100 P.2d 723 . *351 From all the foregoing we conclude the exception to the assumption of risk rule as stated in Hernandez is not applicable where reasonably safe alternative instrumentalities or methods of work are available for an employee's use and we so hold.

1975Co., 151 Kan. 638 , 100 P.2d 723 . *351 From all the foregoing we conclude the exception to the assumption of risk rule as stated in Hernandez is not applicable where reasonably safe alternative instrumentalities or methods of work are available for an employee's use and we so hold.

1975Appellant relies on the rule stated in Hernandez v. Bachand, 199 Kan. 82 , 427 P. 2d 473 , as follows: “. . . [T]here is an exception to the general rule of tha assumption of risk in those cases where an employee, after complaint has been made of a defective or dangerous condition, is induced to continue his service for a reasonable time by reason of his employer’s promise to remedy the defect. [Citations.] The application of this exception to the rule presupposes that the employee has complained of the dangerous condition to his employer; that the employer has promised to remedy the dangerous

1975Appellant relies on the rule stated in Hernandez v. Bachand, 199 Kan. 82 , 427 P. 2d 473 , as follows: “. . . [T]here is an exception to the general rule of tha assumption of risk in those cases where an employee, after complaint has been made of a defective or dangerous condition, is induced to continue his service for a reasonable time by reason of his employer’s promise to remedy the defect. [Citations.] The application of this exception to the rule presupposes that the employee has complained of the dangerous condition to his employer; that the employer has promised to remedy the dangerous

1973Even in the far-reaching decision of Luque v. McLean, (Cal. 1972), 501 P. 2d 1163 , it was recognized that the assumption of risk defense was available, even though the user of a product (a power mower) with a patent defect need not anticipate the defense and prove that he was not aware of the defect, in relying on the principle of strict liability.

1973This position is supported and cogently explained in Felgner v. Anderson, 375 Mich. 23 , 133 N. W. 2d 136 : “Considering our conclusion that the doctrine of assumption of risk in this State properly is applicable only to cases in which an employment relationship exists between the parties, as well, perhaps, where there has been an express contractual assumption of risk, and considering the relative infrequency of such cases today, we need not go so far as did New Jersey’s supreme court to eliminate the confusion and possible injustice resulting from the misuse of the assumption of risk doctrin

1973This position is supported and cogently explained in Felgner v. Anderson, 375 Mich. 23 , 133 N. W. 2d 136 : “Considering our conclusion that the doctrine of assumption of risk in this State properly is applicable only to cases in which an employment relationship exists between the parties, as well, perhaps, where there has been an express contractual assumption of risk, and considering the relative infrequency of such cases today, we need not go so far as did New Jersey’s supreme court to eliminate the confusion and possible injustice resulting from the misuse of the assumption of risk doctrin

1967In four decisions of recent vintage ( Blackmore v. Auer, supra, Anderson v. Cooper, 192 Kan. 723 , 391 P.2d 86 ; Uhlrig v. Shortt, 194 Kan. 68 , 397 P.2d 321 ; and Wilson v. Deer, 197 Kan. 171 , 415 P.2d 289 ) we have dealt at some length with the assumption of risk doctrine in relation to injuries resulting to farm laborers from dangerous and unsafe equipment furnished by their employers.

1967In four decisions of recent vintage ( Blackmore v. Auer, supra, Anderson v. Cooper, 192 Kan. 723 , 391 P.2d 86 ; Uhlrig v. Shortt, 194 Kan. 68 , 397 P.2d 321 ; and Wilson v. Deer, 197 Kan. 171 , 415 P.2d 289 ) we have dealt at some length with the assumption of risk doctrine in relation to injuries resulting to farm laborers from dangerous and unsafe equipment furnished by their employers.

1967In my opinion, the evidence was such that plaintiff was entitled to have the question submitted to the jury. ( Harvey v. Palmer, 179 Kan. 472 , 296 P.2d 1053 .) I agree, however, that the judgment be reversed, but the case should be remanded for a new trial, because the general verdict is not supported by the jury's purported answers to special questions, the members of the jury being unable to agree unanimously on said answers.

1967In my opinion, the evidence was such that plaintiff was entitled to have the question submitted to the jury. ( Harvey v. Palmer, 179 Kan. 472 , 296 P.2d 1053 .) I agree, however, that the judgment be reversed, but the case should be remanded for a new trial, because the general verdict is not supported by the jury's purported answers to special questions, the members of the jury being unable to agree unanimously on said answers.

1966Conclusion of law No. 2 is identical with Syllabus ¶ 2 in Railroad Co. v. Morris, 76 Kan. 836 , 93 Pac. 153 .

1966Conclusion of law No. 2 is identical with Syllabus ¶ 2 in Railroad Co. v. Morris, 76 Kan. 836 , 93 Pac. 153 .

1964(Hill v. Railway Co., 81 Kan. 379 , 105 Pac. 447 .) Many of the rules just announced are no doubt a result of the application of the doctrine of assumption of risk.

1964(Hill v. Railway Co., 81 Kan. 379 , 105 Pac. 447 .) Many of the rules just announced are no doubt a result of the application of the doctrine of assumption of risk.

1963A person is deemed to assume the risk of injury when he knows of the dangers involved in a certain course of action, has a full appreciation of the risks involved and then voluntarily exposes himself to the risk. ( Shufelberger v. Worden, 189 Kan. 379 , 369 P.2d 382 , and cases cited therein.) In the performance of the ordinary duties of a farm laborer Hall would have assumed the normal risk; however, the position in which he was placed in the extraordinary use of the LP gas by defendant did not fall within this category.

1963A person is deemed to assume the risk of injury when he knows of the dangers involved in a certain course of action, has a full appreciation of the risks involved and then voluntarily exposes himself to the risk. ( Shufelberger v. Worden, 189 Kan. 379 , 369 P.2d 382 , and cases cited therein.) In the performance of the ordinary duties of a farm laborer Hall would have assumed the normal risk; however, the position in which he was placed in the extraordinary use of the LP gas by defendant did not fall within this category.

1960Co., 108 Minn. 199 , 25 L.R.A., n.s., 362, and note) of hurting himself with the usual consequences, strain, rupture, hernia, which flow from overtaxing one's strength. .. ." (p. 789.) For other Kansas cases on the doctrine of assumption of risk, see Rush, Adm'x, v. Mo. Pac.