The Transformation of Work and the Law of Workplace Accidents, 1842-1910

Abstract

The common law rules of fellow servant, assumption of risk, and contributory negligence posed a series of daunting obstacles for nineteenthcentury workers seeking to recover for injuries suffered on the job. Strong opposition to the "unholy trinity"' of the common law's workplace accident regime began to develop among progressive reformers in the first decade of the twentieth century. In 1910, New York State enacted the first modem workmen's2 compensation law in the United States, providing compensation to injured workers and their families without regard to fault.3 By the end of the decade an astounding thirty-nine states, the District of Columbia, and three U.S. territories had followed New York's lead.4 The transformation of work accident law has been the subject of a large and sometimes contentious scholarship among historians, lawyers, and social scientists.5 Scholars have generally been inattentive, however, to the ways in 1. WILLIAM PROSSER, HANDBOOK OF THE LAW OF TORTS 512 (1941). 2. This Note retains the gender-specific terminology used by contemporaries to describe no-fault workplace accident laws in order to avoid anachronism. Indeed, the Note seeks (if only in passing) to touch on ways in which the gendered notion of "manliness" and its relation to work played an important role in the law and culture of work accidents. 3. See An Act To Amend the Labor Law, in Relation to Workmen's Compensation in Certain Dangerous Employments, ch. 674, 1910 N.Y. Laws 1945. The New York Court of Appeals struck down the New York legislation in Ives v. South Buffalo Railroad, 94 N.E. 431, 448 (N.Y. 1911) (Werner, J.), but the legislature reenacted a revised compensation statute after the ratification of a constitutional amendment, see Workmen's Compensation Law, ch. 816, 1913 N.Y. Laws 2277. 4. See Harry Weiss, Employers' Liability and Workmen's Compensation, in 3 JOHN R. COMMONS ET AL., HISTORY OF LABOR IN THE UNITED STATES 564, 575-76 (1935). 5. See, e.g., EDWARD D. BERKOWITZ & KIM MCQuAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KAiz, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); RoY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an i...

Unmasked: A History of the Individualization of Risk

“…With the dawn of the industrial age, individuals increasingly broke free of the hierarchical status relations that had afforded protection in the premarket era. Accordingly, in the early years of industrial capitalism, workers were allowed considerable discretion over the process of production and over the shape of their lives more generally, at least relative to the highly constricted work and life patterns of preceding epochs (Welke 2001;Witt 1998Witt , 2004. But increased latitude also exposed workers to considerable hazard.…”

“…Consider the "accidents crisis" that took place at the birth of industrial capitalism between approximately 1870 and 1910, giving shape to the institutions of both public and private insurance (see Ewald 2020;Moses 2018;Witt 2004). The epidemic of accidents reflected that, during the early years of industrial capitalism, the contest between security and freedom was resolved in favor of freedom (see Witt 1998Witt , 2004. That is, as modern individuals were liberated from the constraints imposed by traditional status relationships, they found themselves increasingly unprotected from hazard.…”

“…Similarly, the employer's liability extended to situations where authority was delegated to an employee who directed other employees in their work. As these new legal doctrines multiplied, the tort system became an increasingly complicated amalgam of rules and exceptions to rules (Lempert and Sanders 1986:92;Witt 1998Witt :1483-and increasingly unpredictable in terms of the results it yielded.…”

“…Of course, the advent of statistics did not simply install this new regime unaided by broader political currents, and here too we can observe the dialectic of security and freedom. Because workmen's compensation legislation required employers to absorb a greater share of the financial costs of industrial accidents, management was motivated to reduce the incidence of accidents by limiting how much discretion workers were afforded within the production process (Witt 1998(Witt , 2004). 7 Not surprisingly, organized labor was solidly opposed to a reform that promised to consolidate managerial control over the process of production (Fishback and Kantor 2000;Somers and Somers 1954;Weinstein 1967).…”

“…But first these workers had to accommodate themselves to new production systems that placed control over work processes firmly in the hands of management. Workmen's compensation found its necessary, if paradoxical, complement in the ideology of scientific management (Witt 1998(Witt , 2004. 9 Once in place, the new regime produced an entirely new social ethics.…”