Comparative Negligence and Assumption of Risk in Kansas Personal Injury Cases

Injured man sits talking with female attorney concept for: Assumption of Risk.

The assumption of risk doctrine is a common law standard in personal injury law. In some states, the doctrine can be asserted as an affirmative defense to prevent recovery in a personal injury case. Kansas courts traditionally limited the doctrine to a narrow context. However, the Supreme Court of Kansas ultimately eliminated the assumption of risk defense entirely in favor of the legislative comparative negligence standard. In this discussion, our personal injury lawyers at Sloan Law Firm explain the history and current law on the assumption of risk doctrine in Kansas personal injury cases.

History of Assumption of Risk Doctrine in Kansas

A personal injury claim arises when someone receives injuries that may be due to another person’s conduct. If the actions of the person who caused the injuries falls short of the required legal standard that applies in the circumstances, the at-fault person may be legally responsible for compensating the injured victim.

An injured victim must prove specific elements to demonstrate liability. When the victim makes a claim, the at-fault party (typically represented by an insurance company) usually asserts defenses to prevent the victim from recovering compensation. Under general common law principles, a personal injury defendant could claim that the injured victim assumed the risk of the activity that caused the injuries, thereby eliminating the defendant’s liability. This affirmative defense is known as the assumption of risk doctrine.

Traditionally, Kansas courts took a narrower view of the assumption of risk doctrine than many other jurisdictions, where it applied more generally. Historically, the doctrine only applied to Kansas cases involving injuries that occurred in an employer–employee relationship, where the claim was not covered by workers’ compensation. In that type of case, a successful assumption of risk defense could prevent recovery by an injured victim.

In 1974, Kansas adopted a comparative negligence standard for all personal injury cases. Despite the new law, state courts continued to apply the assumption of risk doctrine in employer–employee injury cases not covered by workers’ compensation, holding that the new statute did not alter the standard.

However, nearly 40 years after implementation of the comparative negligence standard, the Supreme Court of Kansas effectively abandoned the assumption of risk rule entirely in the case of Simmons v. Porter, decided in 2013. In the decision, the Court accepted the injured victim’s argument that Kansas 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.” The case effectively eliminated assumption of risk as an affirmative defense in all Kansas personal injury cases, a view consistent with that of many other states that have adopted a version of the comparative fault standard. As explained by the Court: “[O]ur 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.”

Comparative Negligence and Known Risks in Kansas Personal Injury Cases

Since the assumption of risk doctrine was eliminated entirely by the Supreme Court of Kansas, the effect of a known risk in any injury case is determined by applying the statutory rule of comparative negligence that applies in all Kansas personal injury cases. Under the law, a risk known beforehand by an injured victim is only one factor taken into account in allocating fault under the law. An example of a known risk is a person who sees hazard signs warning of a slippery floor and decides to walk on it anyhow. If the person falls and is injured, knowledge of the floor condition may be a known risk evaluated under the comparative fault standard.

The comparative negligence rule provides that an injured victim whose own negligence contributed to the injuries is not prevented from recovering compensation from an at-fault party if the victim’s own negligence was less than the negligence of the responsible party (or parties). However, the amount of compensation the victim receives is reduced in proportion to the amount of the victim’s own contributory negligence. In other words, for an injured victim to recover compensation, their own negligence must be less than 50% of the cause of the injuries.

If a personal injury claim includes facts relating to risks known to the injured victim prior to receiving the injury, and the case goes to trial, the judge or jury weighs that evidence in determining comparative negligence under the statutory rules. However, since most personal injury claims are resolved through a settlement rather than a trial, evidence concerning known risks becomes a factor in the settlement discussions and negotiations. The attorneys for the injured victim and potentially at-fault party discuss the evidence relating to whether the victim knew specific risks, and factor that evidence into determining comparative negligence and the resulting settlement amount.

The law relating to known risks in injury cases is extremely complex. If you were injured in a situation where there may be an issue concerning a known risk, you should talk with a personal injury lawyer as soon as it is feasible. You should not talk with an insurance adjuster for the party who may be at fault before you meet with a lawyer. You could unintentionally make statements that undermine your case, including with regard to risks existing before the injury occurred.

Talk With a Kansas Personal Injury Attorney

The accident and injury attorneys at Sloan Law Firm have the right experience and knowledge to help you handle all aspects of a personal injury claim. From our offices in Topeka and Lawrence, our lawyers assist clients throughout the state. We invite you to contact us by calling (785) 357-6311 or using our online contact form.