Printable Format44-545. Defenses available in certain cases. In an action to recover damages for an injury by accident arising out of and in the course of employment which was sustained by an employee, who is an employee subject to the provisions of the workmen's compensation act other than by election filed pursuant to K.S.A. 44-542a, or for death resulting from an injury so sustained, in which recovery is sought upon the ground of want of due care of the employer or of any officer, agent or servant of the employer and where such employer at the time of the accident was subject to the provisions of the workmen's compensation act, it shall be a defense for such employer in all cases where said employee has elected not to come within the provisions of the workmen's compensation act pursuant to a valid declaration of election as provided in K.S.A. 44-543: (a) That the employee either expressly or impliedly assumed the risk of the hazard complained of; (b) that the injury or death was caused in whole or in part by the want of due care of a fellow servant; or (c) that said employee was guilty of contributory negligence: Provided, That none of these defenses shall be available where the injury was caused by the willful negligence of such employer, or of any managing officer, or of managing agent of said employer.
History: L. 1927, ch. 232, § 53; L. 1974, ch. 203, § 39; July 1.
Source or prior law:
L. 1911, ch. 218, § 47; L. 1917, ch. 226, § 26; R.S. 1923, 44-545.
Law Review and Bar Journal References:
"Potential Federalization of State Workmen's Compensation Law—The Kansas Response," James C. Wright and James P. Rankin, 15 W.L.J. 244, 265 (1976).
CASE ANNOTATIONS
1. Rejection by employer and acceptance by employee considered; the consequences of this section and section K.S.A. 44-544 follow. Smith v. Cement Co., 94 Kan. 501, 503, 146 P. 1026 (1915).
2. Effect of contributory negligence of employee considered. Ballou v. Railway Co., 95 Kan. 761, 152 P. 284 (1915).
3. Assumption of risk where employee not within compensation act considered. Udey v. City of Winfield, 97 Kan. 279, 155 P. 43 (1916).
4. Section originally applied only to injuries "sustained within this state." Hicks v. Swift & Co., 101 Kan. 760, 761, 168 P. 905 (1917).
5. Effect of section considered. Echord v. Rush, 122 Kan. 260, 263, 251 P. 1112 (1927); reversed 124 Kan. 521, 261 P. 820 (1927).
6. Remedy under act is not exclusive if injury complained of is not within its provisions. Echord v. Rush, 124 Kan. 521, 523, 261 P. 820 (1927).
7. Discussed in reviewing history of election provisions under act; K.S.A. 44-544 construed. Vick v. Morton, 172 Kan. 87, 90, 91, 92, 238 P.2d 467 (1951).
8. Cited in holding assumption of risk defense still absolute bar to recovery by employee. Jackson v. City of Kansas City, 235 Kan. 278, 305, 306, 680 P.2d 877 (1984).
9. Employer failed to prove that employee's intoxication was a substantial cause of fatal injury. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 286, 899 P.2d 1058 (1995).