Colorado § 8-2-205 - Assumption of risk abolished.

§ 8-2-205. Assumption of risk abolished.

If any agent, servant, or employee, while in the performance of his duty for his employer, is injured or killed in the employer's service on account of the employer's negligence or any defect or peril connected with ways, works, machinery, or instrumentalities used in the business of the employer which could have been remedied or made safer by the use of ordinary diligence, a recovery for such injury or death may be had. The fact that such employee had knowledge of the defect or peril shall not be a bar to a recovery unless the repairing or remedying of such defect or peril was his principal duty. All stipulations, contracts, or agreements between an employee and his employer or between other persons contrary to the provisions of this section shall be null and void.

Source: L. 15: p. 197, § 1. C.L. § 4171. CSA: C. 97, § 99. CRS 53: § 80-6-5. C.R.S. 1963: § 80-5-5.

Cross references: For assumption of risk under the "Workers' Compensation Act of Colorado", see § 8-41-101.

ANNOTATION

Law reviews. For article, "Derogation of the Common Law Rule of Contributory Negligence", see 7 Rocky Mt. L. Rev. 161 (1935). For article, "Employer's Liability for Occupational Diseases", see 16 Rocky Mt. L. Rev. 60 (1943).

This section, by its terms, is premised upon the negligence of the employer. Nitzel v. Austin Co., 249 F.2d 710 (10th Cir. 1957).

But this section does not purport to create any new right of action. It merely abates a common-law defense to a statutory cause of action. Ferguson v. Ringsby Truck Line, 174 F.2d 744 (10th Cir. 1949).

And this section relieves the employees and workmen from the assumption of risk for injuries or death. Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957).

Prior to the enactment of this section, the servant assumed only such risks as were obvious to a person of ordinary intelligence, ability and experience, and which arose out of the conditions that surrounded him at the time. Miller v. Camp Bird, Ltd., 46 Colo. 569, 105 P. 1105 (1909).

But workman still assumes risks not created by master's negligence. Since the enactment of this section, and the workmen's compensation act, the doctrine of assumption of any risk created by the master's negligence has disappeared, but the question of whether the employer was negligent remains, and the workman still assumes, so far as a suit for damages is concerned, the risks not created by the master's negligence. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338, 231 P. 1111 (1924).

Instruction held correct. An instruction that if the defendant was negligent, and its negligence was the proximate cause of the injury, there was no assumption of risk was held correct. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338, 231 P. 1111 (1924).

Evidence of negligence requiring submission of case to jury. In action by a farm hand to recover for injuries sustained when his hand was caught in a corn husker, it was held that there was a sufficient showing of negligence on the part of the employer to require submission of the case to the jury. Huddleston v. Ingersoll Co., 109 Colo. 134, 123 P.2d 1016 (1942).