A common law rule providing that an employer is not liable to an employee who suffers injuries on the job caused by the negligence of a fellow employee. The rule has very little vitality today as it has been abrogated in most jurisdictions by statute, judicial decisions or superseded by worker’s compensation laws.
The rule that the employer is not liable for injuries caused solely by the negligence of a servant was first promulgated in England in 1837. Shortly thereafter it became recognized in the United States as well. One of the bases for the fellow–servant rule was that it would promote the safety of the public and all servants to make each one watchful of the conduct of others for his own protection. While such reason and others might have been appropriate to small enterprises and shops because of the close contact and acquaintance one workman had with the others, they had little validity in the industrial area where one employee might be injured by the negligence of a co-employee whom he had never seen. According to one writer, the explanation of the rule probably lay in the highly individualistic viewpoint of courts in common law, and their desire to encourage industrial undertakings by making the burden upon employers as light as possible.
Pomer v. Schoolman, 875 F.2d 1262 (7th Cir. 1989):
Before the advent of workmen’s compensation, industrial accident cases—that is, cases in which an employee sued his employer for an injury sustained on the job—were governed by general principles of tort law, supplemented however by special doctrines thought appropriate to the employment relation. Foremost among these was the fellow–servant rule, under which a plaintiff injured by a co-worker’s negligence could not impute that negligence to their common employer under the doctrine of respondeat superior, as he could have done had he been injured by the employee of a “stranger,” which is to say of someone with whom the victim had no preexisting relationship. The rationale for the fellow–servant rule, as articulated by Chief Justice Lemuel Shaw in the opinion that established the doctrine in American common law, Farwell v. Boston & Worcester R.R., 45 Mass. (4 Met.) 49 (1842), was a dual one. First, the relationship between employer and employee is contractual. If a warranty against injury caused by a careless fellow worker would be mutually beneficial, the parties could be expected to negotiate one voluntarily; in the absence of an express warranty the presumption was that the employer had raised the employee’s pay to compensate the employee for the added risk of an uncompensated injury. An early Illinois case expressed this rationale clearly: “each 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, 26 (1858).
Second, the knowledge that an injury by a careless fellow worker would not be redressed out of their employer’s deep pocket would give workers an added incentive to monitor each other’s care and report a careless worker to the employer. For once the employer was on notice that a worker was careless, the employer would himself be deemed careless, and would therefore be liable for negligence directly rather than derivatively, if he failed to discipline or fire the worker or otherwise prevent him from injuring other workers. The fellow–servant rulewas a defense merely against imputed or derivative liability, not against the employer’s own negligence. It was not a defense of any kind for the careless fellow worker, if he were sued; but ordinarily he was judgment-proof.
Chief Justice Shaw’s analysis, though an undoubted tour de force of legal-economic reasoning, has been questioned as resting on artificial premises concerning the information available to workers about the hazards of the workplace and the practical ability of workers to monitor each other, especially when they worked in different departments of the employer’s business. For Chief Justice Shaw had refused to confine the fellow–servant rule to workers in the same department, mainly on the ground that this would complicate the rule unduly. This refusal compromised the second rationale for the fellow–servant rule; and some nineteenth-century courts—including the Supreme Court of Illinois, which had adopted the fellow–servant rule shortly after Farwell (see Honner v. Illinois Central R.R., 15 Ill. 550 (1854))—declined to follow Farwell all the way, and confined the fellow–servant rule to workers in the same department. See, e.g., Toledo, Wabash & Western Ry. Co. v. O’Connor, 77 Ill. 391, 396–97 (1875). By doing so, the Illinois court compromised the first rationale of the rule (involving freedom of contract and the presumption of a compensating wage differential), which is independent of the proximity in which the fellow servants work, even though the court had adopted that rationale in its earlier decision in Illinois Central R.R. v. Cox, as we have seen.
The controversy over the justice, rationale, consequences, and scope of the fellow–servant rule became largely academic with the passage of workmen’s compensation laws, which made the employer’s liability strict and abolished the fellow–servant rule, see, e.g., Workers’ Compensation Act, Ill.Rev.Stat. ch. 48, ¶¶ 138.1 et seq.; McCormick v. Caterpillar Tractor Co., 85 Ill.2d 352, 53 Ill.Dec. 207, 423 N.E.2d 876 (1981), *1267 and with amendments to the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., which abolished the fellow–servant rule with respect to railroads, the major industry exempted from workmen’s compensation. Later, maritime workers were also placed under this regime, by the Jones Act, 46 U.S.C. § 688, which is modeled on the FELA.
The common law of industrial accidents did not die completely. Some industries were exempt from workmen’s compensation yet not subject to an alternative statutory regime. Farming is today the principal such industry.