In an action against an employer who has not complied with Section 52-3-9 NMSA 1978 to recover damages for an occupational disease sustained by an employee while engaged in the line of his duty as such, or for death resulting from occupational diseases 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 occupational disease or death was caused, in whole or in part, by the want of ordinary care of a fellow servant; or

C. that the occupational disease or death was caused, in whole or in part, by the want of ordinary care of the employee where such want of care was not wilful.

Any employer who has complied with the provisions of this act, including the provisions relating to insurance, shall not be subject to any other liability whatsoever for the disablement of or death of any employee from occupational disease, except as in this act provided; and all causes of action, actions at law, suits in equity and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such death of, or occupational disease of, any such employee and accruing to any and all persons whomsoever, are hereby abolished except as in this act provided.

History: 1941 Comp., § 57-1106, enacted by Laws 1945, ch. 135, § 6; 1953 Comp., § 59-11-6; Laws 1973, ch. 239, § 3.

Compiler's notes. — For the meaning of "this act", see 52-3-1 NMSA 1978 and the compiler's notes thereto.

The New Mexico Rules of Procedure for the district courts provide that there shall be only one form of action, "civil action." See Rule 1-002 NMRA.

Law reviews. — For note, "Comparative v. Contributory Negligence: The Effect of Plaintiff's Fault," see 6 N.M. L. Rev. 171 (1975).