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8-41-101. Assumption of risk - negligence of employee or fellow servant.

Statute text

(1) In an action to recover damages for a personal injury sustained by an employee while engaged in the line of duty, or for death resulting from personal injuries so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of the officer, agent, or servant of the employer, it shall not be a defense:

(a) That the employee, either expressly or impliedly, assumed the risk of the hazard complained of as due to the employer's negligence;

(b) That the injury or death was caused, in whole or in part, by the want of ordinary care of a fellow servant;

(c) That the injury or death was caused, in whole or in part, by the want of ordinary care of the injured employee where such want of care was not willful.


Source: L. 90: Entire article R&RE, p. 476, 1, effective July 1.


Editor's note: This section is similar to former 8-42-101 as it existed prior to 1990.





Law reviews. For article, "Derogation of the Common Law Rule of Contributory Negligence", see 7 Rocky Mt. L. Rev. 161 (1935). For article, "The Enterprise Liability Theory of Torts", see 47 U. Colo. L. Rev. 153 (1976). For article, "Primer on Permanent Disability in the Colorado Workmen's Compensation Law", see 57 Den. L.J. 573 (1980). For article, "The Positional Risk Doctrine -- Compensability of 'Neutral Force' Injuries", see 17 Colo. Law. 2375 (1988).

Annotator's note. Since 8-41-101 is similar to 8-42-101 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

Constitutionality. This section's abrogation of a claimant's common-law rights does not violate constitutional protections of due process and equal protection and the right of access to the courts. Kandt v. Evans, 645 P.2d 1300 (Colo. 1982).

This section has abolished the defense of contributory negligence where the workman's want of care is not wilful. Clayton Coal Co. v. DeSantis, 95 Colo. 332, 35 P.2d 492 (1934).

And although doctrine of assumption of risk has been abolished, the workman still assumes risks. While since the adoption of the workmen's compensation act the doctrine of assumption of risk created by the master's negligence has disappeared, 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).

Claim of intentional tort does not avoid applicability of act. Eason v. Frontier Air Lines, 636 F.2d 293 (10th Cir. 1981).

This section is applicable only in action against employer for negligence resulting in personal injury or death and relates to the abrogation of enumerated common law defenses, and none of these circumstances is relevant to case in which claimant is attempting to pierce the corporate veil in a workers' compensation proceeding. Matter of Death of Smithour, 778 P.2d 302 (Colo. App. 1989).

Proper instruction. In personal injury case, an instruction that, if the defendant was negligent and its negligence was the proximate cause of the injury, there was no assumption of risk, is proper. Colo. Milling & Elevator Co. v. Bright, 76 Colo. 338, 231 P. 1111 (1924).