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Nebraska Workers' Compensation Legal Library

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48-102. Employer's liability; negligence; action; defenses denied.

In all cases brought under sections 48-101 to 48-108, it shall not be a defense (a) that the employee was negligent, unless it shall also appear that such negligence was willful, or that the employee was in a state of intoxication; (b) that the injury was caused by the negligence of a fellow employee; or (c) that the employee had assumed the risks inherent in, or incidental to, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances, which grounds of defense are hereby abolished.


  • Laws 1913, c. 198, 2, p. 579;
  • R.S.1913, 3643;
  • C.S.1922, 3025;
  • C.S.1929, 48-102;
  • R.S.1943, 48-102;
  • Laws 1971, LB 572, 2.


    A common-law misrepresentation defense to govern when an applicant's misrepresentation will bar recovery of workers' compensation benefits is incompatible with the Nebraska Workers' Compensation Act, overruling Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979). Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).

    The statutory defense under this section applies to employees, not applicants. Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).

    This section eliminates from workers' compensation proceedings the three common-law defenses of contributory negligence, the fellow-servant rule, and assumption of the risk, preserving only the employee's willful negligence and intoxication as defenses which the employer may raise. Estate of Coe v. Willmes Trucking, 268 Neb. 880, 689 N.W.2d 318 (2004).

    Willful exposure to freezing weather was not a defense. Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965).

    Allegation that disability was due to employee's failure to allow normal recovery constituted charge of willful negligence. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).

    Defense of assumption of risk is not available. Nedela v. Mares Auto Co., 110 Neb. 108, 193 N.W. 345 (1923).

    Defense that plaintiff was willfully negligent was not established by evidence. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).

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