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F I S C A L I M P A C T R E P O R T

SPONSOR Komadina

DATE TYPED 1/26/05

HB

SHORT TITLE Tort Defense of Assumption of Risk

SB 156

ANALYST Wilson

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

See Narrative

SOURCES OF INFORMATION

LFC Files

Responses Received From

Corrections Department (CD)

Attorney General’s Office (AGO)

SUMMARY

Synopsis of Bill

Senate Bill 156 adopts the common law doctrine of assumption of a risk as a defense to tort ac-

tions in New Mexico. Consequently, tort defendants would not incur any liability to a plaintiff if

it could be shown (either through direct or circumstantial evidence) that the plaintiff knew of,

appreciated the risk of, and voluntarily exposed himself to the danger that proximately caused

the injury or harm giving rise the tort action.

Significant Issues

The AGO provided the following:

The doctrine of “comparative negligence”, or “comparative fault”, has been adopted and

applied by the New Mexico Courts since 1981. Scott v. Rizzo, 96 N.M. 682, 634 P.2d

1234 (1981). In that decision the Court ruled that the doctrine of “contributory negli-

gence” was no longer recognized in New Mexico and any negligence on the part of the

plaintiff would not operate as a complete bar to damage recovery. Comparative negli-

gence or fault apportions fault and damages among negligent parties, including the plain-

tiff. It has also been recognized in state statutes. See for example NMSA Section 41-3A-

1 1978 comp.

Senate Bill 156 -- Page 2

The Supreme Court in Rizzo adopted Judge Walter’s opinion in the Court of Appeals de-

cision on appeal to the Supreme Court. Judge Walters stated: “Assumption of risk is a

form of negligence (see Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971)), and

other liability concepts based on or related to negligence of either plaintiff, defendant, or

both, are subject to the comparative negligence rule.” Judge Walters also stated: “We

hold that the doctrine of comparative negligence more equitably apportions damages and,

in the interest of fundamental justice, is adopted in this jurisdiction and replaces the "all-

or-nothing" rule of contributory negligence.”

Insofar as this bill is an attempt to statutorily overrule judicial decisions adopting and ap-

plying the doctrine of comparative fault (since 1981), and reinstate the absolute defense

of “assumption of risk”, it will likely run afoul of the separation of powers doctrine in Ar-

ticle III section 1 of the New Mexico Constitution, and Article VI Section 1 vesting the

judicial power in the courts. It is unlikely that New Mexico courts will reinstate and rec-

ognize the absolute defense of assumption of risk.

FISCAL IMPLICATIONS

Minimal to moderate decrease in expenditures for payment of tort action judgments and awards.

CD believes this bill will increase the probability that they will prevail in inmate pro se actions

because it is likely that the CD will be able to show in most inmate cases involving injury, that

the inmate assumed the risk of the danger giving rise to his action.

DW/lg:yr