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

Witt & Tani, TCPI 3. Strict Liability and Negligence
1910, every state in the U.S. adopted comprehensive no-fault workers’ compensation schemes.
See JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC (2004). Under workers’ compensation,
injured employees whose injuries arise out of and in the course of the work are typically entitled
to medical care and services and a fraction of their wage loss replacement—typically two-thirds of
the injured employee’s weekly wages, or two-thirds of the jurisdiction’s median weekly wage,
whichever is lower. Claimants may also receive payments for disabling injuries and for
“disfigurement.” N.Y. WORK COMP. LAW. § 13, 15. If the employee is killed, his or her
dependents may be eligible for death benefits. Id. § 16. In exchange for these obligations,
modern workers’ compensation statutes immunize employers from overlapping tort liability. Id. §
11. Note that the original New York statute from 1910 did not provide employers with the quid
pro quo of immunization from tort liability. It left injured employees with the choice to sue in tort
for negligence or to file a compensation claim—a choice to be exercised after suffering the injury.
3. The triumph of workers’ compensation—and the tragedy of William Werner. Coming as it
did in the face of such a widespread movement to enact workers’ compensation, the Ives decision
was hotly controversial. Moreover, just days after Judge Werner announced the decision, the
infamous Triangle Shirt-Waist Fire on the eastern edge of Washington Square Park in New York
City killed more than a hundred young women workers, many of whom leapt to their deaths from
the factory windows when they found the exits locked and impassable. An amendment to the
state constitution quickly passed, providing that workers’ compensation statutes were
constitutional as a matter of state law. Judge Werner, a self-made man from western New York
who had been an ambitious and promising candidate for nomination to the U.S. Supreme Court,
lost his campaign to become the chief judge of the state. His former political sponsor, Theodore
Roosevelt, condemned him as the worst kind of reactionary judge. Werner died soon thereafter a
broken and defeated man. In 1917, the U.S. Supreme Court put the last nail in his coffin by ruling
decisively that the Federal Constitution permitted workers’ compensation liability. For Werner’s
story, see WITT, THE ACCIDENTAL REPUBLIC, Chapter 6.
4. State constitutions and tort reform. Even though Ives seems like a cautionary tale for state
courts striking down legislation dealing with tort law, state courts regularly invalidate tort reform
statutes today. See John Fabian Witt, The Long History of State Constitutions and American Tort
Law, 36 RUTGERS L.J. 1159, 1163 (2005). In the past two decades, courts have struck down tort
reform statutes limiting awards for noneconomic damages, see, e.g., Atlanta Oculoplastic
Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010) and Lebron v. Gottlieb Mem’l Hosp., 930
N.E.2d 895 (Ill. 2010); tort reform statutes that cap punitive damages, see, e.g., Bayer
CropScience LP v. Schafer, 385 S.W.3d 822 (Ark. 2011); tort reform statutes that cap total
damages, see, e.g., State ex rel. Ohio Acad. of Trial Lawyers v. Sherwood, 715 N.E.2d 1062 (Ohio
1999); tort reform statutes creating additional procedural hurdles for plaintiffs, see, e.g., Wall v.
Marouk, 302 P.3d 775 (Okla. 2013); tort reform statutes barring plaintiffs from suing individual
tortfeasors, see, e.g., Clarke v. Or. Health Sci. Univ., 175 P.3d 418 (Or. 2007); tort reform statutes
abolishing joint and several liability, see, e.g., Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill.
1997); and discovery statutes mandating unlimited disclosure of plaintiffs’ medical records, see,
e.g., id. Should state courts override legislative action in the torts area?
5. Tort persists—third-party claims. Workers’ compensation was designed in significant
part to remove lawyers and expensive litigation from workplace injury disputes. The statutes
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