Mechtley v. Price ( 1975 )

Owsley, J.,

dissenting: The opinion for the court recognizes the assumption of risk defense is not available when the injured employee continues in his employment for a reasonable time in reliance upon the employer’s promise to remedy a dangerous condition. This rule is stated in Hernandez v. Bachand, 199 Kan. 82, 427 P. 2d 473. The opinion points out the record does not disclose the appellant was induced to continue in service for a reasonable time in reliance on the employer’s promise. It further states this essential was not established and the appellant’s admissions negative the entire notion. The deposition of the appellant fails to disclose he was ever asked if he continued in service in reliance upon the employer’s promise. The conclusion reached in the opinion depends upon inferences drawn from other testimony. It is well settled that in determining whether a motion for summary judgment should be allowed, the benefit of all inferences that may be drawn from the facts under consideration must be given to the party against whom summary judgment is sought. (Sly v. Board of Education, 213 Kan. 415, 516 P. 2d 895.) The effect of this opinion is to place the burden of proof upon the employee to show by way of discovery that he is entitled to recover. The appellant’s only burden is to show that factual issues exist.

It is my opinion that summary judgment should not be granted in this case. This court, as well as many of our trial courts, too often determines factual issues by way of summary judgment in its desire to dispose of litigation.