The Fellow Servant Rule’s Origins
Introduced in the 19th century, the fellow servant rule’s roots are embedded in the law of master and servant. In England, this was parallel to the modern employer-employee relationship. The fellow servant rule was one principle among many within this ancient law meant to protect those who, at the time, were not considered employees under workers’ comp laws and were not protected by them. The fellow servant rule was based on considerations of equity and justice, in turn designed to support the social contract of the labor market . It essentially stated that the hazards of the workplace are the responsibility of the workers and cannot be blamed on co-workers or the misfortune of chance. The purpose of the fellow servant rule was to prevent employees from recovering financial damages when they suffered injuries as a result of the actions of their coworkers. As stated by Lester Smith in a 2007 article in the American Journal of Business Law, "The fellow servant rule is one of the first attempts to afford employers some protection from negligent co-employees." The fellow servant rule was the precursor of most employer defenses against liability for workplace injuries.
The Definition of the Fellow Servant Rule
The legal definition of the fellow servant rule can be understood in light of its historical roots. The fellow servant rule is an exception to the doctrine of employer liability for injuries to employees. If the injury is caused by the concurrent negligence of more than one person, the injured employee (known as a "master") only has a right of recovery from and against the master for his or her injury. The employer usually is entitled to reimbursement from a fellow servant in whatever sum may have been recovered against him by the master. The fellow servant rule provides that an employer is not liable to his servant for injuries resulting from the negligence of a fellow servant not hired by the employer in the line of the employment.
In a practical sense, the fellow servant rule acts like an immunity, providing that no employee shall recover of his employer damages for injury resulting from the negligence of a fellow servant. The rule is predicated upon the common knowledge that, to some extent, an employee is hired to take the risk imposed by the negligence or incompetence of other employees acting within the scope of their employment, represented in the phrase, "There is no workman who is exempt from his own and that of others."
The fellow servant rule originally arose in point of liability, relieving the employer of the duty of exercising due care towards his servants. Later, the rule was made part of the law of contributory negligence, and became joined with the doctrines of assumed risk and negligence of a co-servant.
Historically, the fellow servant rule was first applied in the case of railway employees and exempted a railroad from liability for the injury of one employee due to the negligence or fault of another employee. Thus, the fellow-servant rule gave an railroad the defense of assumption of the risk where machinery was dangerous, defective, or unsafe, and where the injured employee had knowledge of the defect or unsafe condition.
However, the rule later was overruled by the legislature with the passage of workers’ compensation acts. The Mississippi Supreme Court recently held that the fellow servant rule is no longer good law in Mississippi. In 2017, the Mississippi Supreme Court abolished the fellow servant rule in the case of George v. L & B Rest. Corp. It rejected the defense of fellow servant rule in rejecting a defendant’s argument that the "workplace injury was caused by the negligence of plaintiff’s co-worker." George v. L & B Rest. Corp., 2017-CA-00521-SCT, 2018 WL 5288652, at *5 (Miss. Nov. 15, 2018).
Mississippi now requires employers to provide injured employees a form of medical care and wage-loss insurance. An injury to an employee resulting from his co-worker’s negligence gives the injured employee an extra benefit, in the worker’s compensation remedial field. The fellow servant rule no longer applies to an employer’s duty to provide safe and proper instruments for work.
Implications for Injured Workers and Employer Liability
The fellow servant rule had significant implications for workers’ rights and employer liability. The doctrine operated effectively as a shield for employers, often exonerating them from liability in the face of severe employee injuries. Indeed, this principle prevented the resurgence of common law traditional defenses, such as negligence, through creative jury instructions. For example, defendants would seek and, in many instances, obtain jury instructions asserting that the injured employee was in part responsible for the injury by not using proper care or appearing to assume the risk of the injury by continuing to work in unsafe conditions. In a 1855 decision, the New York Supreme Court began to chip away at the fellow servant rule’s force by holding that the doctrine does not apply when the defendant committed "gross negligence." In other words, negligence could serve as a valid defense where the employer was negligent.
Similarly, the fellow servant rule did not bar plaintiffs from making a negligence claim where the injury was the result of the employer’s negligence – recalling that an employer had a duty to exercise sufficient care at all times in conducting the business – so long as the plaintiff did not seek apportionment for the defendant’s negligence. Thus, the proper jury instruction was that the plaintiff’s recovery is not diminished because of the plaintiff’s contributory negligence unless the injury was the result of "the joint negligence of both parties."
With respect to the defense, the doctrine of contributory negligence and the assumption of risk were frequently asserted as valid defenses. Although states continued to rely on the fellow servant rule as a complete defense, they began to chisel at its foundation as a doctrine. For instance, the Pennsylvania Supreme Court held: "[w]hile . . . the liability of the company may be that of an ‘insurer’, yet it cannot by any process of reasoning be gravely supposed that the wrong-doing or negligence of an employee can justify, in whole or in part, a similar wrong-doing or negligence on the part of [the employer]."
Critiques and Controversies Regarding the Fellow Servant Rule
For these reasons, the fellow servant rule has been subjected to significant criticism from various corners of the law. In Blaschak Coal Corporation v. Welles, 29 Pa. D. & C.3d 216 (1984), the Court undertook a detailed analysis of the fellow servant rule in the context of Pennsylvania workers’ compensation law, and rejected it as an absolute bar to recovery in negligence cases pursuant to Restatement (Second) of Torts section 492. In Blaschak, the Court concluded that while one employee was injured by the alleged negligence of another employee, "the interests of justice [are] better served by submitting the matter to the jury than by granting defendant’s motion for summary judgment" Blaschak at 220-221.
Blaschak’s rebuttal of the fellow servant defense notwithstanding, courts have continued to apply the doctrine in a variety of contexts, including where co-employees were acting within the scope of employment while negligent or when an employee was injured by the negligence of an independent contractor. See e.g., Testa v. Hobbs Trucking, Inc., 191 A.2d 415 (Pa. 1963)(applying fellow servant rule in negligence case in which injured employee sought recovery from the employer). In Moore v. Kayting, 220 A.2d 103, 105 (Pa. 1966), the Supreme Court of Pennsylvania affirmed a demurrer in favor of the employer despite the fact that the allegedly negligent employee was a co-employee because "the law is well established in Pennsylvania, that absent any statute to the contrary, an employer cannot be held liable for the negligence of his employees, whether fellow servants or not, while acting in the scope of their duties." However, the decision in Moore "has led to all sorts of complications, contradictions and inconsistencies in the lower courts" McCauley v. Betz Laboratories, 740 A.2d 686, 691 (Pa. Super. 1999) (Popovich, J., concurring). Such conflicts have led to questions of whether or not a fellow servant defense is available in a particular context and further evidences the ineffectiveness of the fellow servant rule in protecting employers against liability.
Abolition and Repeal of the Fellow Servant Rule
The Fellow Servant Rule was in a state of decline by the end of the 19th century. First, the rule was clearly being eroded by the courts.
As early as 1962, the US Supreme Court seemed to chip away at the rule when it declared in Thomas v. Winchester that the rule could not be used to bar suit where a third party’s negligence exposed an employee/injured party to a danger about which the employee was entirely unaware. Justice Tarleton, in his opinion, stated: "In such case, danger which [the injured party] has had no experience, which involves no negligence or want of care on [his/her] part, and is see is one which the master must anticipate, is produced by the master whose servant runs such risks as an incident of the particular enterprise." Thomas v. Winchester, No. 5, Mott Haven, 24 N.Y. St. Ct. 415 (1862).
Less than 30 years later, the courts made it clear that the Fellow Servant Rule no longer applied in cases of negligence that fell under the umbrella of safety regulations that were enacted to protect workers. In McCarthy v. Davis Iron Works, the court stated that "an employer who causes injury due to negligence as it relates to the workplace is liable to the injured employee, whether or not the injury was caused by a fellow servant." McCarthy v. Davis Iron Works , 34 Misc. 2d 897, 899 (1962). In this case, a construction worker was injured by a falling bridge plank that had been left in place by a co-employee. The court found that security measures installed in an effort to prevent such accidents were not being enforced and should have been. As a result, the construction company was held liable for the severity of the worker’s injuries.
With the advent of safety regulations on the job and the social awareness that accompanied the industrial revolution, the Fellow Servant Rule was clearly on its way out. In fact, many states abolished the rule by statute.
The growing number of states that enacted Workers’ Compensation laws and regulations eliminated the possibility of fellow servant liability. Indeed, from 1929 through 1948, nearly every state in the US adopted some form of worker’s compensation program.
By 1957, only Mississippi had not enacted a worker’s compensation system. Perhaps in recognition of the comprehensive nature of these systems, the American Law Institute repealed the Fellow Servant Rule in 1958 in Restatement (Second) of Torts §507, and the ALI indicated that it (and the vast majority of the country) were opting for the Worker’s Compensation scheme.
Contemporary Implications and Legislative Changes
Today, the fellow servant rule is largely a remnant in the face of modern American law. Reform efforts in the late 20th century led to the abolishment of the defense in most states. Fourteen states had reformed the rule by 1985, and reform laws were proposed in an additional fifteen states between 1976 and 1985. Courts across the country have subsequently held that the fellow servant rule no longer applies, based on changing social norms and other statutory changes. In its ideal role, the fellow servant rule helps to provide a broad yet succinct civics lesson to workers. Simply put, it tells workers that society accepts that there is an inherently dangerous aspect to some jobs, so they must protect themselves with safety procedures such as goggles, gloves and other protective wear. Employers are morally, if not legally, obligated to provide a safe workplace, but it is the sole responsibility of the worker to take full advantage of those protections.
Case Law and Examples
As the name implies, the fellow-servant rule was primarily a common law rule. But in the twentieth century, as states moved from common to statutory law, individual states dropped the fellow-servant rule in favour of statutes providing employer liability, such as WSIA in Ontario.
A few examples:
Mason v New South Wales Tramways & Ferry Co Ltd (NSWSC, 1949) 51 SR (NSW) 167 is a NSW state court case in Australia concerning an injured worker who claimed damages for personal injuries. It was an administrative tribunal that heard the case, and awarded the injured worker damages. The defendant employer appealed the decision, citing the fellow servant rule — the injured plaintiff was a railway worker operating a petrol-powered tramcar.
The tribunal’s decision was ultimately overturned on appeal, because the court concluded that the fellow servant rule did not apply to railway workers, who were generally expected to operate without regard to the safety of their fellow workers. The tribunal decision was not supported by evidence as to the existence of any exception to the rule .
In Garciula v Laindas, 1952 Carswell Ont 168 (Ont Dist Ct), the plaintiff was killed while performing roadwork. At issue was whether his employer could be held liable for his death. The defendant employer (a municipality) argued that the common law defence of voluntary assumption of risk, or the fellow servants rule should apply. The judge concluded they did not, and the employer was found liable.
In Ontario Ministry of Transportation v Loto (2006), 266 DLR (4th) 452 (Ont Sup Ct). Here a worker employed to clean up the upkeep her workplace at a rest area in southwestern Ontario, was injured late at night when he was brutally attacked at work.
Sports equipment has been a point of reference in Ontario since 1976; after a case concerning a participant injured while using defective sports equipment resulted in them winning damages. The case resulted in the Ontario Legislature’s adopting of The Occupiers’ Liability Act, which identifies the circumstances under which occupiers of a premise can be found liable.
Thus, it is likely that most contemporary legislation in Canada will now take the place of common law surrounding the fellow servant rule.
