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What is the Fellow Servant Rule?

Generally, employers are legally liable for the injuries their employees cause while working. This is the doctrine of “vicarious liability” or “respondeat superior,” which essentially means “let the master answer.”

Imagine you are crossing the street when a delivery driver ends up hitting you. Because the driver is working and was negligent, you can typically sue his employer for compensation. Employers have deeper pockets than their employees, with large insurance policies. Being able to sue an employer is a big help in your quest for fair compensation.

The Fellow Servant Rule was a common law defense to vicarious liability. It applied to those situations where the injured victim was also an employee. The rule protected employers from being sued when an employee’s negligence injured another employee. Think of two workers hammering planks. One employee swings carelessly and strikes his coworker in the face, fracturing an orbital bone and causing blindness. Although you might think vicarious liability makes the employer liable, they could raise the Fellow Servant Rule as a defense and get out of having to pay any compensation.

The Origins of the Fellow Servant Rule

Where did this rule even come from? And did it make sense to begin with?

The Fellow Servant Rule was created by judges in the 1830s, when a British court decided Priestly v. Fowler. In that case, a butcher’s servant was injured when an overloaded cart collapsed. The victim, Charles Priestly, suffered a fractured thigh and dislocated shoulder, along with other injuries. Because other employees overloaded the cart with mutton, Mr. Priestly sued their employer.

The Court of the Exchequer held that allowing Priestly to sue his employer for negligence of a fellow servant would be “alarming” and cause “inconvenience” and “absurdity.” The court also reasoned that a worker was well positioned to judge the dangerousness of a task, so he should simply decline to perform a task if it was dangerous. Allowing him to sue his employer would create a disincentive to be cautious and diligent on his employer’s behalf.

This reasoning isn’t terribly persuasive. The employer also has an incentive to keep his premises safe, and the Fellow Servant Rule lets employers off the hook for negligent failure to supervise. Still, that’s the law that British judges applied.

South Carolina, like other American colonies, adopted most of the common law rules from Britain and maintained them even after independence. South Carolina judges adopted the Fellow Servant Rule as well.

Workers’ Compensation & the Fellow Servant Rule

The Fellow Servant Rule doesn’t have much relevance anymore because very few workers end up suing their employers in South Carolina. There is a simple reason. The state’s workers’ compensation system has replaced the tort system for most workplace injuries. Under South Carolina law, workers’ compensation benefits are usually the exclusive remedy an injured worker has against his or her employer for a workplace accident.

Workers’ compensation benefits are not generous. Typically, you can get reasonable and necessary medical care paid for but only a portion of your wages if you are temporarily or permanently disabled. You also won’t qualify for pain and suffering compensation, no matter how serious your injuries.

Because you can’t sue your employer under workers’ compensation laws, the fellow servant rule doesn’t apply. Furthermore, employers can’t raise it in the workers’ compensation context. Instead, their insurer must pay you benefits if you qualify for a work-related injury.

When Can You Sue Your Employer?

There are some situations where you might sue your employer. For example, South Carolina only requires that employers with at least four employees purchase workers’ compensation insurance. If your employer has three or fewer employees, they can opt out, but that means they might be sued.

Here are some examples where a negligent employee injures a coworker:

  • You could be traveling with another employee who drives negligently and causes a car accident. For example, you might be traveling to meet with clients or participate in a conference. Here, a fellow employee (servant) injured you negligently by texting and driving or by being on drugs. Because they caused the crash, you might sue them and your employer.

  • An employee responsible for clearing a walkway could fail to do their job, leaving trash or boxes in the way. You trip and fall, injuring yourself. Because the fellow employee was negligent, you might sue them.

  • While working on scaffolding, one worker bumps another accidentally and causes him to fall. The question is whether the employee acted negligently.

In these or similar cases, you should consult an attorney if your employer is not covered by workers’ compensation. Your lawyer will want to analyze all the facts to fully understand what happened and your legal rights. Be prepared for your employer to raise the Fellow Servant Rule as a defense, however.

Can You Sue Your Fellow Employee?

Let’s say you work for an employer who has only two employees and doesn’t have workers’ comp. If a fellow employee hurts you, then you might sue them. Does this mean you automatically win?

Not at all. Your coworker might argue that your own negligence is to blame. For example, they might have accidentally bumped you on scaffolding. But you could have worn shoes with a worn tread or failed to put on a safety harness. Your own negligence could result in not receiving any compensation. You should work closely with an attorney to fully identify your own negligent conduct—and then minimize it.

And if your employer has workers’ compensation? In Nolan v. Daley (1952), the South Carolina Supreme court held that an injured worker couldn’t sue a co-employee who negligently injured him in the course of employment.

Call Surasky Law for Help

Injured workers need immediate help following a tragic work-related accident. In addition to feeling intense pain, many workers are afraid they cannot work or pay their bills. At Surasky Law, our Aiken, SC workers’ compensation lawyer will analyze all possible avenues to receiving compensation in a free consultation. We don’t rest until you receive justice.


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