Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
our written Constitutions. In that respect we are unlike any of the countries whose industrial laws
are referred to as models for our guidance. . . .
With these considerations in mind we turn to the purely legal phases of the controversy for
the purpose of disposing of some things which are incidental to the main question. . . .
This legislation is challenged as void under the fourteenth amendment to the federal
Constitution and under section 6, art. 1 of our state Constitution, which guarantee all persons
against deprivation of life, liberty, or property without due process of law. . . . One of the
inalienable rights of every citizen is to hold and enjoy his property until it is taken from him by
due process of law. When our Constitutions were adopted, it was the law of the land that no man
who was without fault or negligence could be held liable in damages for injuries sustained by
another. That is still the law, except as to the employers enumerated in the new statute, and as to
them it provides that they shall be liable to their employes for personal injury by accident to any
workman arising out of and in the course of the employment which is caused in whole or in part,
or is contributed to, by a necessary risk or danger of the employment or one inherent in the nature
thereof, except that there shall be no liability in any case where the injury is caused in whole or in
part by the serious and willful misconduct of the injured workman.
It is conceded that this is a liability unknown to the common law, and we think it plainly
constitutes a deprivation of liberty and property under the federal and state Constitutions, unless
its imposition can be justified under the police power which will be discussed under a separate
head. In arriving at this conclusion we do not overlook the cogent economic and sociological
arguments which are urged in support of the statute. There can be no doubt as to the theory of this
law. It is based upon the proposition that the inherent risks of an employment should in justice be
placed upon the shoulders of the employer, who can protect himself against loss by insurance and
by such an addition to the price of his wares as to cast the burden ultimately upon the consumer;
that indemnity to an injured employe should be as much a charge upon the business as the cost of
replacing or repairing disabled or defective machinery, appliances, or tools; that, under our
present system, the loss falls immediately upon the employe who is almost invariably unable to
bear it, and ultimately upon the community which is taxed for the support of the indigent; and that
our present system is uncertain, unscientific, and wasteful, and fosters a spirit of antagonism
between employer and employe which it is to the interests of the state to remove. We have already
admitted the strength of this appeal to a recognized and widely prevalent sentiment; but we think
it is an appeal which must be made to the people, and not to the courts. The right of property
rests, not upon philosophical or scientific speculations, nor upon the commendable impulses of
benevolence or charity, nor yet upon the dictates of natural justice. The right has its foundation in
the fundamental law. That can be changed by the people, but not by Legislatures. In a
government like ours, theories of public good or necessity are often so plausible or sound as to
command popular approval; but courts are not permitted to forget that the law is the only chart by
which the ship of state is to be guided.
. . .
The argument that the risk to an employe should be borne by the employer, because it is
inherent in the employment, may be economically sound; but it is at war with the legal principle
that no employer can be compelled to assume a risk which is inseparable from the work of the
employe, and which may exist in spite of a degree of care by the employer far greater than may be
exacted by the most drastic law. If it is competent to impose upon an employer, who has omitted
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