Beyond Workers' Compensation: Workplace Comparative Fault & Third-party Claims

JurisdictionUnited States,Federal
Publication year2010
CitationVol. 20 No. 2

Beyond Workers' Compensation: Workplace Comparative Fault & Third-Party Claims

Hon. William A. Dreier


Injured workers in America look to workers' compensation to cover their basic losses. Payment of medical bills, partial defraying of wage losses, and some compensation for temporary or permanent disability is usual throughout the country. Workers' compensation does not cover all potential loss that the worker incurs, however, such as full hedonic damages, which are foreign to the concept of workers' compensation.

With few exceptions,[1] workers' compensation bars suits against employers and co-workers, but not against third parties who, through their negligence or the operation of defective products, may have contributed to an employee's injury. An employee generally bases his third-party claim on products liability law[2] and asserts that claim against the manufacturer,[3] distributor,[4] seller,[5] inspector,[6] assembler,[7] lessor,[8] or rebuilder[9] of a piece of equipment that the employee operated or with which he otherwise came into contact.

Unless otherwise barred, third-party defendants generally will assert a defensive claim of contributory or comparative negligence if the plaintiff played any part in causing his own injury.[10] In some jurisdictions, the employee's own fault may absolutely bar or partially offset recovery.[11] In other jurisdictions, however, courts may largely overlook the employee's fault.[12] Although Restatement (Third) of Torts: Products Liability discusses products liability in detail, the reporters' comments only lightly treat the subject of the effect of a worker's fault on a third-party claim.[13]

This Article begins by exploring the varying standards that the courts throughout the United States employ to assess a worker's contributory or comparative negligence. Part II compares the unique refusal of New Jersey and Ohio courts to recognize the majority's approach to an employee's fault when he becomes injured while working with a defective product.[14] Finally, Part III posits that this refusal may not be as limiting as it initially appears.

I. The Varying Treatment of Employee Conduct in Third-Party Injury Claims

Cases that address how a worker's fault impacts third-party claims fall into four main categories. Under the first approach, an employee's contributory negligence bars the claim.[15] In the second category, the court compares the worker's fault to that attributed to the product.[16] Under the third approach, if the worker has unreasonably assumed the risk of a known danger in his use of the product, his conduct offsets the third party's liability on a comparative basis.[17] In the fourth category, the worker's negligent conduct will not affect his recovery if he reasonably assumed that his employer assigned the task and that he had no meaningful choice except to proceed in the face of the known danger.[18]

A. The Contributory Negligence Standard

The common law doctrine of contributory negligence bars a plaintiff's recovery when the plaintiff's own negligence contributed to his injury. The latter half of the 20th century saw the gradual eradication of this doctrine, as states either judicially or legislatively replaced contributory negligence with the concept of comparative fault.[19] At the time of this publication, only four states still employ or purport to apply contributory negligence as a complete bar to a plaintiff's claim.[20]

Alabama, North Carolina, and Virginia have retained the strict contributory negligence standard, under which the plaintiff's unreasonable conduct trumps a breach of the manufacturer's duty, even in the employment context.[21] Maryland, though nominally a contributory negligence state, actually applies an assumption of risk standard.[22]

Alabama, a strict contributory negligence state, completely bars recovery for injuries that resulted from the plaintiff's own negligence, misuse of a product, or assumption of risk.[23] Alabama allows as a defense the plaintiff's assuming the risk of a known defect or danger.[24] The sole ameliorating factor is that Alabama follows Restatement (Second) of Torts section 402A,[25] which defines assumption of risk as proceeding unreasonably in the face of a known defect or danger.[26] Thus, a court might find that a plaintiff did not proceed unreasonably when forced by the economic circumstances of his employment to work on a machine that he knew to be unsafe.

Like Alabama, North Carolina statutorily recognizes assumption of risk and contributory negligence as complete bars to recovery in products liability actions.[27] In fact, North Carolina jury instructions go so far as to apply contributory negligence to any claim of defect in manufacture, design, or warning.[28]

Virginia has never adopted Restatement (Second) of Torts section 402A and does not permit strict liability as a basis for recovery in a products liability case.[29] Virginia courts use the doctrine of contributory negligence as a bar to all recovery in negligence actions because Virginia law does not provide for recovery in a system of comparative fault.[30] Assumption of risk is likewise a complete defense, but courts have lessened its impact by requiring defendants to prove that plaintiffs both fully appreciated and voluntarily accepted the risk.[31] Thus, a plaintiff might argue that he did not act voluntarily, if he had no economically meaningful choice but to continue working on an unsafe machine.[32]

B. The Comparative Fault Standard

Concepts of comparative fault range from pure comparative fault, which allocates liability to each party on a percentage basis unless the plaintiff is 100% negligent, to systems of modified comparative fault, which permit courts to bar recovery when the plaintiff's percentage of fault is at or above 50% or 51%.[33] Most states apply comparative fault standards to products liability claims, either by statute or by case law.[34] Some of these states, tangled in the doctrinal differences between strict liability and negligence, stop short of the protective New Jersey and Ohio doctrines. These states simply refuse to apply comparative fault in strict products liability cases and instead require proof of assumption of risk.[35]

Comparative fault should not present a conceptual problem, except with respect to manufacturing defects, the only class of products liability actions to which strict liability applies.[36] Manufacturers are liable for the presence of their defective products on the market when the products differed from the designs that the manufacturer intended, and they are held strictly liable for the harm that such defects cause.[37] A court cannot apply comparative fault by comparing the manufacturer's conduct with that of the plaintiff because the manufacturer's conduct is not relevant to his liability. Even in this situation, however, a plaintiff who unreasonably contributed to his own injury should bear some portion of the responsibility for his injury. A court may compare the role that a plaintiff's conduct played in causing his injury with the risk of injury inherent in a defective product even though the manufacturer's conduct is not relevant to this analysis.[38]

In products liability actions based on a design or a warning defect, the principal issue for the court is the fault of the worker compared to the reasonableness of the design or the warning.[39] Where the product either is defectively designed or contains a defective warning, the analysis is basically one of negligence, even though the court still uses the rubric of strict liability.[40] Thus, a manufacturer's placement of a defectively designed product (or one with an inadequate warning) on the market can readily be compared with the conduct of the plaintiff under a standard jury charge. The court can devise an appropriate jury charge if the jurisdiction's law limits the plaintiff's liability to assumption of risk or another relevant doctrine.

Plaintiff-friendly states and liberal commentators generally favor a strict liability rubric, while manufacturer-oriented jurisdictions and conservative commentators favor a negligence standard.[41] A recent study questioned the bases of these preferences and found that the negligence formulation yielded higher awards.[42]

C. The Assumption of Risk Standard

Restatement (Second) of Torts section 402A, which assigns strict liability to sellers of defective products and which is perhaps the single most influential section of all of the Restatements, developed against the background of the prevailing acceptance of the contributory negligence bar.[43] At a time when few states had adopted comparative fault, comment n to section 402A explained:

Contributory negligence. Since the liability with which this [s]ection deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see [section] 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this [s]ection as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.[44]

As expected, many states that adopted the strict liability standards of section 402A also adopted the contributory negligence rules of comment n. When these states abandoned the harsh contributory negligence bar to recovery and adopted the more plaintiff-friendly comparative fault standard either through legislative or judicial change, they did not elect to revise their...

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