N.M. Stat. § 52-1-10 (2026)

employer to provide or failure of employee to use safety devices.
    A. In case an injury to, or death of, a worker results from his failure to observe
statutory regulations appertaining to the safe conduct of his employment or from his
failure to use a safety device provided by his employer, then the compensation
otherwise payable under the Workers' Compensation Act shall be reduced ten percent.

    B. In case an injury to, or death of, a worker results from the failure of an employer
to provide safety devices required by law or, in any industry in which safety devices are
not prescribed by statute, if an injury to, or death of, a worker results from the
negligence of the employer in failing to supply reasonable safety devices in general use
for the use or protection of the worker, then the compensation otherwise payable under
the Workers' Compensation Act shall be increased ten percent.

    C. In case the death of a worker results from the failure of an employer to provide
safety devices required by law or, in any industry in which safety devices are not
prescribed by statute, if the death of a worker results from the negligence of the
employer in failing to supply reasonable safety devices in general use for the use or
protection of the worker, and the deceased worker leaves no eligible dependents under
the Workers' Compensation Act, in addition to the benefits provided for in Subsection A
of Section 52-1-46 NMSA 1978, compensation in the amount of five thousand dollars
($5,000) shall be paid to the surviving father and mother of the deceased or, if either of
them be deceased, to the survivor of them. The surviving father and mother, or either of
them, may file a claim for the five thousand dollars ($5,000) compensation, provided the
father or mother has given notice in the manner and within the time required by Section
52-1-29 NMSA 1978 and the claim is filed within one year from the date of the worker's
death. If there be no surviving father or mother, then the five thousand dollars ($5,000)
compensation provided for in this subsection shall not be payable.

   D. Any increased liability resulting from negligence on the part of the employer shall
be recoverable from the employer only and not from the insurer, guarantor or surety of
the employer under the Workers' Compensation Act, except that this provision shall not
be construed to prohibit an employer from insuring against such increased liability.

    E. No employee shall file a claim for increased compensation under the Workers'
Compensation Act on the basis of an injury suffered because of the lack of a safety
device nor shall a dependent of a deceased employee or the father or mother as
provided in Subsection C of this section file a claim on the basis of the death of a worker
suffered because of the lack of a safety device, unless the claim identifies the specific
safety device which it is claimed was not furnished by the employer. The employer is
under a like duty to allege the specific safety device which it is claimed an employee
failed to use before the employer may claim a reduction of compensation as herein
provided.

History: Laws 1929, ch. 113, § 7; C.S. 1929, § 156-107; Laws 1937, ch. 92, § 5; 1941
Comp., § 57-907; Laws 1953, ch. 96, § 1; 1953 Comp., § 59-10-7; Laws 1955, ch. 29, §
1; 1959, ch. 67, § 3; 1967, ch. 148, § 1; 1989, ch. 263, § 7.

                                    ANNOTATIONS

Cross references. — For the Mining Safety Act, see 69-8-1 NMSA 1978 et seq.

For devices required by mining safety rules and regulations as "safety devices required
by law," see 69-8-15 NMSA 1978.

                         I.     GENERAL CONSIDERATION.

Effect of Laws 1953, ch. 96. Clary v. Denman Drilling Co., 1954-NMSC-105, 58 N.M.
723, 276 P.2d 499.

This section must be liberally construed in favor of workman [worker], but this
does not mean enlarging on the apparent legislative intent or giving words meaning
beyond their ordinary scope. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076,
66 N.M. 165, 344 P.2d 475 (decided under former law).

Modification of benefits using OSHA regulations precluded. — The use of OSHA
regulations to modify an employee's workers' compensation benefits is clearly
precluded under 50-9-21A NMSA 1978. Bateman v. Springer Bldg. Materials Corp.,
1989-NMCA-039, 108 N.M. 655, 777 P.2d 383, cert. denied, 108 N.M. 681, 777 P.2d
1325.

Purpose of penalty system. — The percentage penalty system of this section is a
recognition of and an attempt to correct the disproportion which might exist between the
misconduct and the penalty. It attempts to accomplish both objectives of a
compensation system; first, by providing enough compensation protection to avoid
reducing the claimant to destitution; and second, by allowing a part of the loss, in the
form of a fine, to fall on the wrongdoer. Baca v. Gutierrez, 1967-NMSC-021, 77 N.M.
428, 423 P.2d 617.

Safety device statute was passed to compel employers to supply reasonable
safety devices in general use for the protection of the workmen where safety devices
are not specified by law. Only by observing it may employers avoid liability under it for
compensable injuries to their employees. It is negligence to fail to do so if the facts
render the act applicable. Apodaca v. Allison & Haney, 1953-NMSC-048, 57 N.M. 315,
258 P.2d 711.
This section is not affected by provision limiting defenses of contributory
negligence and assumed risk. Pino v. Ozark Smelting & Mining Co., 1930-NMSC-057,
35 N.M. 87, 290 P. 409.

Not applicable to employers in mining industry. — The penalty provision of the
Workmen's [Workers'] Compensation Act was not applicable to employers in the mining
industry where specific safety regulations were prescribed by the Mine Safety Act.
Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202
P.2d 1080 (decided under former law).

The term "industry" is not defined by specific examples of uses, thus the industry
involved here is not work near a high voltage line and is not work on a high voltage line,
but work exposing the decedent to the dangers of high voltage lines. Quintana v. East
Las Vegas Mun. Sch. Dist., 1971-NMCA-029, 82 N.M. 462, 483 P.2d 936.

Compensable character of the injury is question preceding and independent of the
other question, "who shall receive it?" Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57
N.M. 217, 257 P.2d 909.

Recovery from employer and insurer. — Provision in Workmen's [Workers']
Compensation Act (prior to 1959 amendment) authorizing additional percentage of
compensation if employee's injury flowed from employer's failure to furnish safety
devices authorized recovery from both employer and insurer in industries where safety
devices were required by law, and authorized recovery from the employer only in
industries wherein safety devices were not required by law. Janney v. Fullroe, Inc.,
1943-NMSC-042, 47 N.M. 423, 144 P.2d 145.

Timeliness of claim where disability paid. — Claim for workmen's [workers']
compensation plus penalty for employer's failure to supply safety devices was not
prematurely filed though regular disability compensation had been paid until time claim
was filed. Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937.

Safety device defined. — A safety device is an instrumentality that will lessen danger
or secure safety, something tangible, concrete, that can be seen, touched or felt as
opposed to a rule or course of conduct. Benavides v. Eastern N.M. Med. Ctr., 2014-
NMSC-037, rev’g No. 32,450, mem. Op. (N.M. Ct. App. Mar. 25, 2013) (non-
precedential).

Safety device contemplated by this section is something tangible and concrete,
which can be seen, touched and described. Montoya v. Kennecott Copper Corp., 1956-
NMSC-062, 61 N.M. 268, 299 P.2d 84.

Wet floor sign is a safety device. — A wet floor sign, which is something tangible and
concrete and warns of the specific danger of a slippery floor, is a safety device.
Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev’g No. 32,450, mem. Op.
(N.M. Ct. App. Mar. 25, 2013) (non-precedential).
Employer’s responsibility to create a safe workplace. — Where employee nurse
slipped and fell on a wet hospital floor, supreme court held that employer hospital failed
in its duty to create a safe work environment where it provided wet floor signs, as safety
devices, to custodial staff, but failed to ensure that the wet floor signs were properly
employed, and therefore employee nurse was entitled to penalty increase in benefits.
Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev’g No. 32,450, mem. Op.
(N.M. Ct. App. Mar. 25, 2013) (non-precedential).

Not all things which promote safety can be considered as safety devices, and
even those things which might be safety devices for one purpose may not be so for
another purpose. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076, 66 N.M.
165, 344 P.2d 475.

Requirement of "safe place to work" is not "safety device" within the meaning of
this section. Montoya v. Kennecott Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299
P.2d 84.

Causal relation between injury and lack of safety device. — This section does not
go to the causal relationship between the death and the accident. It goes to the causal
relation between the death and the failure to supply reasonable safety devices;
therefore, this section does not require the causal relation between the death and the
lack of safety devices to be proved to a medical probability. Quintana v. East Las Vegas
Mun. Sch. Dist., 1971-NMCA-029, 82 N.M. 462, 483 P.2d 936.

This section requires that the injury or death of the workman [worker] must result from
the employer's failure to provide a safety device before the 10% penalty can apply. In
the absence of a showing of causation, no issue of entitlement to the penalty is raised.
Boughton v. Western Nuclear, Inc., 1983-NMCA-052, 99 N.M. 723, 663 P.2d 382.

"Specific safety practice enjoined by law" not followed. Montoya v. Kennecott
Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299 P.2d 84.

Question of safety device on appeal. — Question that if safety device was required it
was duty of general contractor and not the subcontractor to supply it not having been
raised in lower court, it could not be presented on appeal for the first time. Wright v.
Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937.

Supreme court review where judgment inherently defective. — Supreme court
could review question of whether employee's widow was entitled to receive additional
compensation by reason of the employer's failure to supply the safety devices required
by law even though the assignment of error had been abandoned by the widow, as the
supreme court may in its discretion review on its own motion where judgment of the trial
court is inherently and fatally defective. Thwaits v. Kennecott Copper Corp., 1948-
NMSC-019, 52 N.M. 107, 192 P.2d 553.
Penalty for frivolous appeal. — The 10% penalty for a frivolous appeal was not
applicable to an employer's and insurer's appeal from judgment in workmen's [workers']
compensation case awarding employee disability compensation plus 50% additional
compensation for employer's failure to supply reasonable safety devices. (Prior to 1959
amendment.) Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937 (decided
under former law).

Before safety measures can be considered as safety devices, there must be some
proof that the same are in general use in that industry. Hicks v. Artesia Alfalfa Growers'
Ass'n, 1959-NMSC-076, 66 N.M. 165, 344 P.2d 475.

Device must be generally used in particular industry. — For the employer to avoid
liability under the act, the safety device provided must be one generally used in the
particular industry, and a device less than the safety device used generally in the
particular industry may not be substituted therefor. Dickerson v. Farmer's Elec. Coop.,
1960-NMSC-036, 67 N.M. 23, 350 P.2d 1037.

Establishing general use. — Where one mining company used a safety electrical
switch while two other companies in the same industry did not, a general use had not
been established. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53
N.M. 127, 202 P.2d 1080.

General use may be established by use of few. — The fact that there were but few
engaged in the construction of sewer lines in streets carrying gas mains along which
service lines were constantly encountered that had to be disconnected and reinstalled,
thus creating hazard, would not preclude proof that there was a reasonable safety
device employed by enough of the few so engaged to establish a general use. Apodaca
v. Allison & Haney, 1953-NMSC-048, 57 N.M. 315, 258 P.2d 711.

Witnesses qualified to do so may testify directly as to general use of safety
devices in an industry and are not restricted to giving particular examples thereof.
Briggs v. Zia Co., 1957-NMSC-074, 63 N.M. 148, 315 P.2d 217.

Territorial limitation on proof of "use". — This section reads "reasonable safety
devices in general use" and does not place a territorial limitation on the proof of that
"use." It would seem logical that a practice in "general use" not only locally but
universally would have greater weight in showing the employer's knowledge thereof. On
the other hand, a "general use" locally only would be sufficient to make an employer
liable under the act if the other requirements are met. Briggs v. Zia Co., 1957-NMSC-
074, 63 N.M. 148, 315 P.2d 217.

Local general use over universal where different. — Where the universal "general
use" differs from the local "general use" then it would be necessary to offer proof of a
reasonable safety device in "general use"locally. Briggs v. Zia Co., 1957-NMSC-074, 63
N.M. 148, 315 P.2d 217.
Custom or usage is matter of fact and not of opinion but proof of the fact may be
established either by testimony of specific uses, or by evidence of general practice of
contractors. Romero v. H.A. Lott, Inc., 1962-NMSC-037, 70 N.M. 40, 369 P.2d 777.

"General use" of safety device is established where it is shown that the use of a
handrail was "prevalent," "usual," "extensive though not universal" and "widespread" by
those engaged in the building industry. Romero v. H.A. Lott, Inc., 1962-NMSC-037, 70
N.M. 40, 369 P.2d 777.

Finding of total permanent disability. — Where there is evidence of a substantial
nature that employee not only suffered an injury to his knee but there is shown a
general body impairment resulting therefrom of permanent damage to the quadriceps
muscle; a permanent limp which produces a pelvic tilt, resulting in back pains; when he
drives a truck or climbs, his leg swells and pains him, the pain extending to his back, a
finding of total permanent disability is proper. Hamilton v. Doty, 1958-NMSC-139, 65
N.M. 270, 335 P.2d 1067.

Claim withdrawn where employer complied with safety act. — Consideration of
claim by employee for percentage penalty on ground that potash company, as
employer, failed to guard a bucket elevator adequately was properly withdrawn from jury
where it was shown that the employer had met requirements of the Mine Safety Act.
Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202
P.2d 1080.

Rearview mirror on particular construction vehicle found to be reasonable safety
device. Martinez v. Zia Co., 1983-NMCA-063, 100 N.M. 8, 664 P.2d 1021.

Evidence that insulated gloves were safety device for workmen who are working
around such electrical lines and that they are in general use for working on such lines
held sufficient. Quintana v. East Las Vegas Mun. Sch. Dist., 1971-NMCA-029, 82 N.M.
462, 483 P.2d 936.

Guardrails on ore train used about mines constitute "safety devices" required by
law within compensation act and an increase in the award by statutory percentage is
justified where the employer fails to provide such safety device. Thwaits v. Kennecott
Copper Corp., 1948-NMSC-019, 52 N.M. 107, 192 P.2d 553.

Portable motor. — A motor attached to movable concrete mixer was only a part thereof
and not a "portable motor" within the meaning of the exception mentioned in the section
requiring electrical apparatus other than portable motors to be grounded so that
additional percentage of compensation could be recovered for employee's death.
Neeley v. Union Potash & Chem. Co., 1943-NMSC-010, 47 N.M. 100, 137 P.2d 312.

Barricades to elevator shafts. — Statute denounces failure to furnish such safety
devices as barricades or doors to elevator shafts as negligence and if employer fails to
provide them or other reasonable safety devices in general use, the employer must
suffer the statutory penalty. Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d
937.

                             II.    EMPLOYEE FAILURE.

Reduction of compensation for failure to use safety equipment. — Compensation
of worker in potash refinery was properly reduced by 50% because he failed to use
safety equipment furnished by his employer which met requirements of the Mine Safety
Act. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202
P.2d 1080.

Failure to use safety device. — Failure to use a device provided by employer,
reasonably calculated to promote safety, though not required by law, whereby injury
resulted, required percentage reduction of compensation. Pino v. Ozark Smelting &
Mining Co., 1930-NMSC-057, 35 N.M. 87, 290 P. 409.

Where there is evidence at trial to show that the deceased was aware that the area in
which he was killed was unsafe and that he was not allowed there, and where there is
substantial evidence to support the court's finding that the deceased was in an unsafe
area, despite warnings and safety training, when a slab fell on him and killed him, the
court's reduction of the available benefits is proper. Aragon v. Anaconda Mining Co.,
1982-NMCA-076, 98 N.M. 65, 644 P.2d 1054.

Pursuant to Rule 12(b), N.M.R. Civ. P. (now Rule 1-012B NMRA), when an employer
raises the defense that the employee failed to use a provided safety device, the defense
must be asserted in a responsive pleading or the defense is not at issue. Salazar v. City
of Santa Fe, 1983-NMCA-134, 102 N.M. 172, 692 P.2d 1321, cert. quashed, 102 N.M.
225, 693 P.2d 591 (1985).

Violation of company policies. — Subsection A does not provide for a reduction in
benefits when an employee simply violates company policies in the absence of
evidence that the violation caused the injury. Ramirez v. Dawson Prod. Partners, Inc.,
2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043.

Consumption of alcohol. — Reduction of an employee's benefits for consumption of
alcohol was not warranted in the absence of evidence that such consumption caused
his injuries. Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, 128 N.M. 601,
995 P.2d 1043.

Speeding. — In light of findings that speeding was a contributing cause of the accident
(and therefore the injuries), it was proper to reduce an employee's compensation award
by 10%. Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, 128 N.M. 601, 995
P.2d 1043.

Where employee negligent and not failure to use safety device. — Provision for
reduction of compensation for failure to use safety device provided by employer was not
applicable where proximate cause of employee's death in fire which started when
employee attempted to load tank truck with gasoline was employee's negligent act of
pulling electric switch which started pump while he still held loading hose unconnected
with the tank truck, and not his failure to use the safety valve provided. Sallee v.
Calhoun, 1942-NMSC-065, 46 N.M. 468, 131 P.2d 276.

No contributory negligence in act except failure of workman [worker] to use
device. — Contributory negligence has no place in the Workmen's [Workers']
Compensation Act unless it be in failure of workman [worker] to observe statutory safety
regulation or to use a safety device furnished by employer, which results in a
percentage reduction in compensation he would otherwise receive. Wright v. Schultz,
1951-NMSC-039, 55 N.M. 261, 231 P.2d 937.

Issue not raised in pleadings but tried by consent. — In a hearing as to an
employee's work-related hearing loss, the employer introduced evidence on the
availability of particular safety devices for hearing protection. The claimant did not
object; in fact, he cross-examined the witness on whether use of the devices was
mandatory and the method of enforcement. Under these circumstances, this issue was
tried by consent and the claimant's contention that the employer was not entitled to
benefit from the defense, because it was not raised in the pleadings, was without merit.
Cisneros v. Molycorp, Inc., 1988-NMCA-080, 107 N.M. 788, 765 P.2d 761, cert. denied,
107 N.M. 785, 765 P.2d 758 .

Question of employee failure submitted to jury. — Question whether employee
failed to make use of safety electrical switches and whether such failure caused his
injury while repairing an ore bucket elevator was properly submitted to jury in action
under Workmen's [Workers'] Compensation Act. Jones v. International Minerals &
Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080.

Defense of employee intoxication. — Where intoxication is used as a defense by
insurance carrier it has burden of proving the employee's intoxication and that the
intoxication was cause of the accident which resulted in employee's injury. Parr v. N.M.
State Hwy. Dep't, 1950-NMSC-016, 54 N.M. 126, 215 P.2d 602.

Failure to use vehicle seat belt. — Where the trial court found that the vehicle which
was being driven by the plaintiff was equipped with a seat belt, which is a safety device,
but that plaintiff did not have his seat belt on, the trial court accordingly reduced
plaintiff's compensation by 10% for failure to use a safety device. Roybal v. County of
Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Reduction of employees' benefits for failure to use seat belts was not warranted in the
absence of evidence that such failure caused their injuries. Ramirez v. Dawson Prod.
Partners, Inc., 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043.

Use of improper size wrench. — Where appropriate sizes of wrenches were available
and foreman was present whose duty among other things was to furnish proper
wrenches upon request, claimant being aware of danger attending use of improper size
wrench, the penalty provision was not applicable. Rowland v. Reynolds Elec. Eng'g Co.,
1951-NMSC-046, 55 N.M. 287, 232 P.2d 689.

                             III.   EMPLOYER FAILURE.

Employer is liable for penalty for failure to provide safety device in general use in
an industry despite the fact that no single generally accepted method existed
concerning installation of that safety device where there is a difference in the manner in
which the devices used are built and installed but they are practically identical when
installed and accomplish the same end result. Abeyta v. Pavletich, 1953-NMSC-068, 57
N.M. 454, 260 P.2d 366.

Duty on employer to ensure safety devices are properly employed. — Where the
purpose and spirit of this act is for employers to create a safe work environment for their
employees, and the final responsibility and duty is on employers to furnish adequate
safety devices for their workers, employers must not only provide safety devices, but
must also ensure that safety devices are properly employed. Benavides v. Eastern N.M.
Med. Ctr., 2014-NMSC-037, rev’g No. 32,450, mem. Op. (N.M. Ct. App. Mar. 25, 2013)
(non-precedential).

Employer’s responsibility to create a safe workplace. — Where employee nurse
slipped and fell on a wet hospital floor, supreme court held that employer hospital failed
in its duty to create a safe work environment where it provided wet floor signs, as safety
devices, to custodial staff, but failed to ensure that the wet floor signs were properly
employed, and therefore employee nurse was entitled to penalty increase in benefits.
Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev’g No. 32,450, mem. Op.
(N.M. Ct. App. Mar. 25, 2013) (non-precedential).

General failure to provide safety devices is not enough. There must be causation
between employer's negligent management in regard to safety precautions and an
intentionally caused injury. The critical measure, as reflected in Morales v. Reynolds,
2004-NMCA-098, 136 N.M. 280, 97 P.3d 612 and Cordova v. Peavey Co., 273 F. Supp.
2d 1213, is whether the employer has, in a specific dangerous circumstance, required
the employee to perform a task where the employer is or should clearly be aware that
there is a substantial likelihood the employee will suffer injury or death by performing
the task. The possibility that an accident might occur because of an unexpected
careless act of a co-employee does not meet the Delgado v. Phelps Dodge Chino, Inc.
2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148 standard. Dominguez v. Perovich, 2005-
NMCA-050, 137 N.M. 401, 111 P.3d 721, cert. denied, 2005-NMSC-005, 137 N.M. 522,
113 P.3d 345.

Duty on employer to furnish adequate safety device. — The legislature enacted this
section as a penalty system, placing the duty on the employer to furnish adequate
safety devices in general use for the use or protection of the workman [worker], and in
the event of his failure to do so, making him liable to be found guilty of negligence and
subject to the penalty provided. Baca v. Gutierrez, 1967-NMSC-021, 77 N.M. 428, 423
P.2d 617.

The legislature enacted this section as a penalty system, placing the duty on the
employer to furnish adequate safety devices in general use for the use or protection of
the workman [worker]. Garza v. W.A. Jourdan, Inc., 1977-NMCA-136, 91 N.M. 268, 572
P.2d 1276, cert. denied, 91 N.M. 249, 572 P.2d 1257.

Although employer is generally in another type of business, the particular activity at
the time of the accident controls and employer has the duty of supplying reasonable
safety devices for the work involved. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-
NMSC-076, 66 N.M. 165, 344 P.2d 475.

Even where employer engaged in more than one industry. — Under this section, it
is the duty of the employer to supply reasonable safety devices in general use in the
industry of the employer. It follows that if the employer is engaged in more than one
industry, he is charged with supplying the safety devices in general use in each of such
industries. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076, 66 N.M. 165, 344
P.2d 475.

Where court instructed that failure of employer must be "negligent" failure, that
the safety device not supplied must be a reasonable one in general use, that the
resulting accident must have been the proximate cause of the employer's failure, and
that the employer must have known or reasonably should have known of the safety
device at the time of the accident, the court specifically spelled out negligence and its
refusal to define negligence further may not be urged as error. Briggs v. Zia Co., 1957-
NMSC-074, 63 N.M. 148, 315 P.2d 217.

Negligence proscribed in this section is the failure to supply safety device, not the
negligent disregard for the safety of employees. Baca v. Gutierrez, 1967-NMSC-021, 77
N.M. 428, 423 P.2d 617.

Statute of limitations not applicable. — Although the statute of limitations, Section
52-1-31 NMSA 1978, is jurisdictional and need not be raised as an affirmative defense,
it nevertheless does not apply to this statutory penalty section relating to increase or
reduction in compensation for failure to supply safety devices. Garza v. W.A. Jourdan,
Inc., 1977-NMCA-136, 91 N.M. 268, 572 P.2d 1276, cert. denied, 91 N.M. 249, 572
P.2d 1257.

No penalty liability where co-employees negligently used safety device. — Where
the employer has provided the safety device required by law and an employee is injured
through the negligence of his co-employees in using the safety device, the injured
employee is not entitled to a penalty increase in benefits. Jaramillo v. Anaconda Co.,
1981-NMCA-030, 95 N.M. 728, 625 P.2d 1245.
Devices required by Occupational Health and Safety Act regulations. —
Regulations adopted under the authority of the state Occupational Health and Safety
Act do not affect an employer's liability under the Workmen's [Workers'] Compensation
Act, and safety devices required by such regulations are not required by law for the
purposes of Subsection B. Casillas v. S.W.I.G., 1981-NMCA-045, 96 N.M. 84, 628 P.2d
329, cert. denied, 96 N.M. 116, 628 P.2d 686, and appeal dismissed, 454 U.S. 934, 102
S. Ct. 467, 70 L. Ed. 2d 242 (1981).

Evidence to support knowledge of employer of existing safety devices. — Where
plaintiff proves that an explosion occurred in sewer pipe, killing decedent, and that
previously gas leaks were discovered along the gas service lines close to the sewer
pipe, and that gas was found inside the sewer pipe a few hours after explosion, the
evidence is ample to entitle the jury to find that there was in common use, known to the
defendants, or which in the exercise of ordinary care should have been known to them,
safety devices for detecting and eliminating gases which might have accumulated in
their sewer conduit in dangerous quantities, without depending solely on the sense of
smell. Apodaca v. Allison & Haney, 1953-NMSC-048, 57 N.M. 315, 258 P.2d 711.

Employer must have foreseen catastrophe if precautionary measures omitted. —
Summary judgment is improper where there is an issue of fact as to whether the
employer should have reasonably foreseen the danger and subsequent injury to the
employee when particular safety devices were not used. DeArman v. Popps, 1965-
NMSC-026, 75 N.M. 39, 400 P.2d 215.

Increases compensation of dependents. — It is not intended that there should be
compensation to dependents who are not able to make out a case which would have
entitled the workman [worker] to compensation if death had not ensued. On the other
hand, the failure of the employer to provide safety devices will increase the
compensation of dependents as well as of the workman [worker]. Sanchez v. Bernalillo
Cnty., 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909.

Where workman [worker] killed while installing safety device. — Since there was
evidence that the general practice of the construction industry with respect to work in
highly dangerous ditches is to build cribbing as the work progresses, employer was
liable for penalty for failure to provide safety device where decedent workman [worker]
was actually engaged in installation of such safety device at the time he was killed but
the installation of cribbing had merely been started. Abeyta v. Pavletich, 1953-NMSC-
068, 57 N.M. 454, 260 P.2d 366.

Failure to supply reasonable safety device in general use in electrical industry is
proscribed as negligence, and this section fixes the penalty therefor. Dickerson v.
Farmer's Elec. Coop., 1960-NMSC-036, 67 N.M. 23, 350 P.2d 1037.

The safety device in general use in the electrical industry for the protection of its
linemen was a pair of rubber insulated gloves, which meet the industry's specifications,
and plaintiff's gloves, falling short of such specifications could not be classified as a
safety device in "general use" in the electrical industry. Dickerson v. Farmer's Elec.
Coop., 1960-NMSC-036, 67 N.M. 23, 350 P.2d 1037.

Metal or plastic helmet is reasonable safety device generally provided by
employers for the protection of workmen who work near overhead swinging cables,
hooks or machinery such as in the present case, and the employer failed to provide
such safety device; therefore, such failure requires a compensation award to be
increased by 10%. Mascarenas v. Kennedy, 1964-NMSC-179, 74 N.M. 665, 397 P.2d
312.

Device for well driller's helper. — Addition of statutory penalty to compensation for
total and permanent disability from accidental injury was proper where evidence
warranted the finding that employer failed negligently to supply reasonable safety
devices which were in general use for the protection of a well driller's helper. Flippo v.
Martin, 1948-NMSC-060, 52 N.M. 402, 200 P.2d 366.

Compliance with mining safety practices. — Delinquency of the employer with
respect to specific safety practices required by mine safety statutes did not subject an
employer to imposition of the penalty award under the safety statute, this section, where
a workman [worker] had been injured or killed simply because the safety statute did not
so provide. Montoya v. Kennecott Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299
P.2d 84 (decided under former law).

Prescribing required safety devices. — The labor and industrial commission is
authorized to prescribe required safety devices for each industry by proper rules and
regulations and to cause the same to be filed with the librarian at the supreme court
library as a public record. 1953 Op. Att'y Gen. No. 53-5796.

Law reviews. — For comment, "Witnesses - Privileged Communications - Physician-
Patient Privilege in Workmen's Compensation Cases," see 7 Nat. Resources J. 442
(1967).

For annual survey of New Mexico law relating to workmen's compensation, see 13
N.M.L. Rev. 495 (1983).

For annual survey of New Mexico Workers' Compensation Law, see 20 N.M.L. Rev. 459
(1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation
§§ 255, 408.

Failure to use safety appliances as serious and willful misconduct, 4 A.L.R. 121, 9
A.L.R. 1377, 23 A.L.R. 1161, 23 A.L.R. 1172, 26 A.L.R. 166, 58 A.L.R. 198, 83 A.L.R.
1211, 119 A.L.R. 1409.
Provision denying compensation for injury through willful failure to use guard or safety
appliance, 9 A.L.R. 1377.

Constitutionality of statute which makes the application of regulations affecting place or
conditions of work dependent upon demand of employees, 27 A.L.R. 927.

Federal Safety Appliance Act, state's power to substitute workmen's compensation for
action, based on noncompliance, to recover for death of or injury to railroad employee
while engaged in intrastate commerce, 104 A.L.R. 839.

Additional compensation because of misconduct or violation of law by employer,
insurer's liability for, 1 A.L.R.2d 407.

What conduct is willful, intentional, or deliberate within Workmen's Compensation Act
provision authorizing tort action for such conduct, 96 A.L.R.3d 1064.

99 C.J.S. Workmen's Compensation §§ 262, 333, 336; 100 C.J.S. Workmen's
Compensation §§ 574, 612, 629; 101 C.J.S. Workmen's Compensation §§ 848, 860,
923, 944.