Fellow-Servant Rule

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FELLOW-SERVANT RULE

A common-law rule governing job-related injuries that prevents employees from recovering damages from employers if an injury was caused by thenegligenceof a coworker.

In the mid-nineteenth century, a rise in industrial accidents brought to U.S. law an English idea about responsibility. The fellow-servant rule said simply, workers who are hurt by a coworker—a fellow servant—should blame the responsible coworker, not their employer. After first appearing in a U.S. decision in 1842, the rule had a powerful effect on the law for the next century. Its tough-luck notion of fairness protected employers and doomed injured employees, who often had no other hope for recovering damages after serious accidents. In allowing employers to invoke the defense, courts wanted to help the nation's industries grow at a time of vast expansion, when the dangerous jobs of factory work and railroad building needed bodies that could be injured without repercussions to employers. Only in the early and mid-1900s did lawmakers undermine the rule, through passage of federal and state workers' compensation laws.

The fellow-servant rule broke from general common-law principles of liability. Traditionally, courts had treated cases of job-related accidents under tort law (a tort is a civil wrong that causes harm to a person or property). Specifically, these claims came under the tort of negligence—the failure to do what a reasonable person would do under the same circumstances. Certain suits were seen as acceptable. For example, if a man named John were injured by a negligent worker named Bill, and Bill worked for an employer with whom John had no preexisting relationship, John could readily sue the employer for Bill's negligence. But everything changed if John and Bill worked for the same employer; then, the employer could invoke the fellow-servant rule as his defense, and courts would dismiss the suit.

The fellow-servant rule first appeared in 1837, in Great Britain, in Priestly v. Fowler (150 Eng. Rep. 1030 [1837]). In that case, an over-loaded delivery van driven by one employee overturned and fractured the leg of another employee. The injured employee's lawsuit against their common employer succeeded, but it was overturned by the Court of Exchequer. The magistrate, Lord Abinger, scoldingly held that the injured employee "must have known as well as his master, and probably better" about the risks he undertook in van delivery. Moreover, concerns about the public good steeled the magistrate against the plaintiff. If suits such as Fowler were permitted against employers, workers would soon forget about their duty not to hurt themselves.

U.S. law was quick to learn this lesson in employers' immunity to liability. Only five years later, in 1842, the Supreme Judicial Court of Massachusetts announced it in the landmark case Farwell v. Boston & Worcester R.R., 45 Mass. (4 Met.) 49. The case came during the nation's greatest burst of industrial development, as it transformed from an agrarian society to an industrial society. Few state judges appreciated this shift as keenly as the Massachusetts court's chief justice, lemuel shaw (1781–1861). Nearing the end of a remarkable life in law, Shaw grasped economic considerations better than social ones, and his plainspoken opinions were tremendously influential.

Chief Justice Shaw's decision in Farwell had blunt logic. Although a railroad employee had lost his hand through the negligence of a fellow worker, Shaw looked beyond the loss of limb to the dangerous precedent that a finding of employer liability would pose to growing industries at a crucial moment in history. He wanted to encourage this growth. So he imported the fellow-servant rule, justifying it in purely economic terms. Whereas Lord Abinger had reminded employees of their duty to be cautious, Shaw observed that employee alertness was also compensated: workers in more dangerous jobs would be taken care of by the market, through higher wages. Furthermore, employees entered such jobs voluntarily and therefore chose to put themselves at risk. Thus, a contract of employment existed, and it could not place liability on the employer's shoulders except when the employer was personally responsible—and certainly not when a fellow employee was clearly to blame for the injury.

The reverberations of this decision were felt throughout the rest of the nineteenth century. Shaw was not the only judge whose sympathies lay with industry. As more courts adopted the fellow-servant rule, the doctrine had a drastic effect on workers. An 1858 Illinois Supreme Court decision succinctly echoed Shaw's reasoning: "[E]ach servant, when he engages in a particular service, calculates the hazards incident to it, and contracts accordingly. This we see every day—dangerous service generally receiving higher compensation than a service unattended with danger or any considerable risk of life or limb" (Illinois Central R.R. v. Cox, 21 Ill. 20).

The industrial revolution was not an age of safety: laborious work, long hours, crude training, and rough tools led to accidents involving workers. Injured workers sued their employers because employers arguably bore some responsibility and always had deeper pockets than fellow workers. But employers needed only to point out that a coworker's negligence was partly or wholly the cause of the injury, and the nation's courts stood ready to uphold the fellow-servant rule.

Injured employees could rarely win these suits. A slight hope existed: if an employer was notified of a careless worker's behavior but failed to take disciplinary or corrective action, the employer became directly liable for mishaps that the careless worker caused. But to prove this in court required testimony. Who would intervene? Worried about losing jobs, few coworkers would testify. Thus, the fellow-servant rule along with two related defenses, contributory negligence and assumption of risk, came to be dubbed "the three wicked sisters of the common law," because together they left the burden on the injured and powerless employee (48 Vand. L. Rev. 1107 [May 1995]).

The twentieth century brought change. Even by the early 1900s, the fellow-servant rule had begun to crumble. Courts had new ideas. The mere existence of a rule safeguarding employers' interests had failed to stop workers from having accidents and bringing compelling cases. To permit certain lawsuits to proceed, courts created exceptions to the fellow-servant defense. Some courts permitted suits where the coworker was a supervisor; others limited the defense to employees working in the same department. As a result, employers could at last be held liable for some on-the-job injuries caused by coworkers.

Through the efforts of the labor movement, two further reactions against the fellow-servant rule sapped it of most of its force. The first was a change in federal law. In 1908, Congress passed the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.), designed to protect railroad employees. Its protections were extended to maritime workers with the jones act (46U.S.C.A. § 688). The major development to undermine the fellow-servant rule was the passage of workers' compensation laws in states, which ensured that employees would receive compensation for injury or illness incurred at work. By 1949, every state had passed workers' compensation laws.

By the late twentieth century, the fellow-servant rule was largely dead, although a few loopholes remained in some occupations, chiefly farming. At that point, the rule's rare appearance in court provoked surprise, as in the 1989 case of Pomer v. Schoolman, 875 F.2d 1262, 7th Cir., which moved federal appellate judge richard a. posner to remark in his opinion, "[I]t is up to Illinois to plug what to many observers will seem an anachronistic and even cruel gap in the state's law of industrial accidents."