This is the first of a series of posts which are designed to show that workers’ compensation systems, insurance and laws are an excellent–the best that we have–model for dealing with gun violence victim compensation and for reducing that victimization.
A little over one hundred years ago, our country faced a crisis that was quite similar to the gun violence problem that we now face. Industrial and work related accidents were completely out of hand, producing deaths and injuries that reached almost every family. Looking back on my own family history, a great uncle on my fathers side was killed and my mothers grandfather lost an arm–both in railroad accidents of that era. It’s mostly forgotten today but it was a great issue at the beginning of the twentieth century.
An important right and freedom for individuals was threatened at the time. It was the freedom of persons to contract for the sale of their time and services. Today that right is usually examined critically only when employers abuse the relationship; but then we had more recently emerged from times of indentured servitude and outright chattel slavery. Freedom to contract ones labor and services as one wanted was a great step forward; but did it include the freedom to sell ones body to the possibility of death and injury?
Direct regulation of the specific dangers of various activities and practices had a role to play at that time as it does today around firearms. Many laws in critical industries such as mining and railroads were passed in the first decade of the new century. Some established new agencies such as the Bureau of Mines in 1910; others regulated dangerous practices including the 1908 Ash Pan Act which prohibited locomotives which required workers to go underneath to empty ashes. Today with firearms, we have many regulations and prohibitions including limitations on machineguns and weapon possession by felons and other dangerous persons. Direct control of dangers by legislation reduces the harm by a substantial and fortunate factor but leaves a large and unsatisfactory remainder.
In both of our cases, the reason for the inadequacy of specific regulations is similar. The dangers are of many kinds, they are spread through a huge economy, they change constantly with new technology, and few want the involvement or expense of government inspectors in every detail of activities. A more flexible path to safety is and was needed; an economic path where the actors had a self-interest in safety.
The nineteenth century way to provide an incentive for reducing injury is through lawsuits. Tort liability law was the way to make employers responsible in 1900 and remains the way we make gun owners responsible today. Injured workers or their survivors usually received no benefit from this system. The cost and burden of proving an employer negligent was too much; and the employer was allowed devastating arguments in defense such as worker’s assumption of risk, fault of co-workers or the injured worker’s own contribution to the negligence. The contribution to safety of this system was also small; it was cheaper for employers to stonewall injured workers than to install safety practices or equipment.
One stream of improvement is to make it easier for workers to be awarded damages. Some states made changes in tort liability laws for this end and limited the defenses that employers could use to deny responsibility. We can and probably should adopt measures today for firearms to ease establishment of tort liability. For example, we could assume negligence in cases of accidental discharge or projectiles striking unintended targets. This would be similar to our, now customary, assumption of fault for a car hitting another vehicle from behind. But tort law is at best a very incomplete solution to problems of widespread injury. Long before it is made strict enough to seriously protect victims, employers of yesteryear or gun owners of today would feel an excessive fear of lawsuits. A synthesis and a compromise of the interests of victims with those of employers or of gun owners is needed.
A hundred years ago many people ranging from advocates such as Crystal Eastman to politicians including President Theodore Roosevelt worked to solve this problem. An amazing compromise for workers emerged which is taken for granted today. Workers in most cases gave up their rights to sue employers for unlimited damages, but employers were required to buy insurance that protected employees from work related injuries without consideration of fault. This compromise is famous and is called “The Workers’ Compensation Bargain.”