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

Witt & Tani, TCPI 3. Strict Liability and Negligence
remove many of the contested issues from a claimant’s case and replace common law courts and
juries with an administrative claims process. Moreover, workers’ compensation statutes typically
place low caps on lawyers’ fees, in part to prevent compensation claims from being heavily
litigated.
Even so, workers’ compensation has become the foundation for many plaintiffs’ lawyers’
practices. Plaintiffs’ lawyers often organize their offices by arranging for a steady intake of
workers’ compensation claims, which pay very little, but pay more quickly than tort claims and
bring in a steady stream of revenue. One function of the compensation cases for the plaintiffs’
lawyer is to find so-called “third-party cases”: cases where the involvement of a product in the
events leading to the injury allow for a tort suit against the product’s manufacturer. The product
manufacturer is a third party and thus not immunized from suit by the workers’ compensation
legislation. See Stephen Daniels & Joanne Martin, Texas Plaintiffs’ Practice in the Age of Tort
Reform: Survival of the Fittest—It’s Even More True Now, 51 N.Y.L. SCH. L. REV. 286 (2006).
Workers’ compensation statutes were designed to remove tort litigation from the
workplace. But the third-party cases reintroduce tort precisely where workers’ compensation
aimed to displace it. In some jurisdictions, third-party defendants in such suits are able to bring
claims for contribution or indemnity against employers if they can show that the employers’
negligence was a cause of the injury in question. The result is that employees and employers are
involved in tort litigation over work injuries, the aim of the compensation programs to the
contrary notwithstanding. In other jurisdictions, product manufacturer defendants are barred from
bringing contribution claims against employers. But even here, employers still pay for tort
liability over and above the workers’ compensation benefits to the extent that third parties, such as
product manufacturers or other vendors or service providers, price their products and services to
reflect the risk of third-party suits.
6. Settlement as a compensation system. The idea of workers’ compensation was to replace
the uncertainty and the expense of common law jury trials with a certain (though limited)
compensation regime. The two systems are typically described as polar opposites. But how
different they are in practice is unclear, since few common law tort cases ever get to a courtroom
and a jury. Indeed, some observers argue that a vast private settlement system has emerged in the
shadow of tort law that has come to resemble the administrative apparatus of workers’
compensation systems. As early as the 1930s, plaintiffs’ lawyers were converting many types of
injuries into settlement values. Since then, settlement practices in many areas of tort law and
workers’ compensation have converged on administrative schemes that adopt liability matrixes
and damages grids to manage settlements. See Samuel Issacharoff & John Fabian Witt, The
Inevitability of Aggregate Settlement: An Institutional Account of American Tort Law, 57 VAND.
L. REV. 1571, 1615, 1625-26 (2004); JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS 274-75
(2007). The common law tort litigant thus does not often find herself in a system providing each
individual with a “day in court” before a jury of her peers. To the contrary, tort litigants (like
workers’ compensation claimants) often find themselves in vast bureaucracies with easilyadministered,
one-size-fits-all rules for claims resolution. The difference—and it is a significant
one—is that the tort litigant encounters a private bureaucracy, where the compensation claimant is
in a public one. See Issacharoff & Witt, supra, at 1625-26; see also John Fabian Witt,
Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of
the Tort System, 56 DEPAUL L. REV. 261, 268-69 (2007).
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