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31 Val. U. L. Rev. 1181 (1996-1997)
The Price of Killing a Child: Is the Fair Labor Standards Act Strong Enough to Protect Children in Today's Workplace

handle is hein.journals/valur31 and id is 1233 raw text is: THE PRICE OF KILLING A CHILD:
IS THE FAIR LABOR STANDARDS ACT
STRONG ENOUGH TO PROTECT CHILDREN IN
TODAY'S WORKPLACE?
[WIhere the costs of accidents exceeds the costs ofpreventing them, the law will
impose liability.'
I. INTRODUCTION
How    much does it cost to injure or kill a child?         Under workers'
compensation law in the United States, employers and their insurers can
calculate the amount of compensation that will be paid, either for the injuries or
for the burial costs, to an injured child or surviving heirs when that child is
injured or killed in the workplace.2 All injuries and deaths are unfortunate, but
they become atrocities when they occur because that child was performing a task
designated so inherently dangerous for children that the activity has been
restricted by the federal government.3 Asking the price of a child's life is a
1. Pruitt v. Allied Chem. Corp., 523 F. Supp. 975, 978 (E.D. Va. 1981). This is the classic
statement of the principal purpose of tort law, namely, to maximize social utility. It originated from
Judge Learned Hand's opinion in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.
1947), in which he stated that a person's duty to prevent injuries is a function of three variables:
(1) The probability that ... [the accident will occur]; (2) the gravity of the resulting injury, if [it]
does; [and] (3) the burden of adequate precautions. See also, e.g., RICHARD A. POSNER,
ECONOMIC ANALYSIS OF LAW 119-61 (1977); GUIDO CALABRESI, THE COSTS OF ACCIDENTS
(1970).
2. See infra notes 86-107 and accompanying text. For a defintion of oppressive child labor
under the Fair Labor Standards Act, see infra note 7.
3. The Fair Labor Standards Act (FLSA) provides the national source for child labor law
regulations. 29 U.S.C. §§ 201-19 (1994). FLSA designates particularly hazardous occupations as
too dangerous for minors to perform. The following agricultural occupations have been prohibited:
Operating a tractor of more than 20 power-take-off horsepower, or connecting or
disconnecting an implement or any of its parts to or from such a tractor; operating or helping
to operate any of the following machines: corn picker, cotton picker, grain combine, hay
mower, forage harvester, hay baler, potato digger, mobile pea viner, feed grinder, crop dryer,
forage blower, auger conveyer, unloading mechanism of a nongravity-type, self-unloading
wagon or trailer, power post-hole digger, power post driver, nonwalking-type rotary tiller,
trencher or earth moving equipment, forklift, potato combine, and power-driven circular,
band, or chain saw; working on a farm in a yard, pen, or stall occupied by one or more of
the following: bull, boar, or stud horse maintained for breeding purposes, sow with suckling
pigs, cow with newborn calf (with umbilical cord present); felling, bucking, skidding, loading,
or unloading timber with a butt diameter of more than 6 inches; working from a ladder or
scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a
height greater than 20 feet; driving a bus, truck, or automobile when transporting passengers,

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