The Tort of Negligence and the Employment Relationship Report (Assessment)

Situation 1

Brief facts

A woman slipped on a banana peel and fell outside Good Grocers, Inc. bakery. She was an anchorwoman for NewsNow. She wore five-inch high heels at the time of the incident.

Issues

1. What is the most appropriate method for dispute resolution?
2. What steps would be involved in seeking a resolution?

Rule

Law of tort

Resolution

1. The matter in this case is best resolved by way of litigation, as the matter falls under the law of tort of negligence. The law would require the matter to be taken through the proper steps of determining the existence of liability. Consequently, the court would have to establish whether Good Grocers, Inc. owed a duty of care to the injured person, whether the company breached the duty, and whether there had been harm on her part. The court would have to apportion liability for the incident between the victim and the company. It would put into consideration contributory negligence on the part of the victim and her stature in society as a news anchor, which might aggravate the harm caused to her. If alternative dispute resolution measures were to be taken in this matter, the resolution arrived at would lack the above analysis and the process would, probably, arrive at an erroneous finding (Gifford & Robinette, 2014).
2. In seeking a resolution, the court would have to determine whether the action or omission of the company amounted to an act of negligence. Negligence refers to acting or failing to act in a manner that reflects reasonableness. It is a discipline of law that deals with strict liability, rather than intentional breach of law (Deakin, Johnston, & Markesinis, 2012). The court would consider the following elements.

Duty of care

The tort feasor must have owed the victim a duty of care for the tort of negligence to be established. The duty of care was defined in the case of Donoghue v. Stevenson [1932] AC 532, where Lord Atkin found that the duty of care was an obligation of caution owed to a neighbor. The neighbor was considered to be one who was so close to the tort feasor to have him reasonably contemplate his safety by any of his acts or omissions. In the instant case, therefore, the victim may be found to have been a neighbor. Consequently, a duty of care was owed, given the obligation of caution that the company ought to have taken to ensure her safety.

Breach of duty

Following the establishment of the company’s duty of care to the victim, the court would have to determine whether the duty was breached or not. In other words, the above discussed duty of care must have been clearly violated in the circumstances. In the instant case, the victim would argue that the presence of banana peels on the ground amounted to a breach of the duty, as the company omitted to carry out its obligation to place the peels in the right place (Deakin, Johnston, & Markesinis, 2012).

Harm

The victim may not succeed in proving negligence in the circumstance, unless she is able to prove that the breached duty of care on the part of the company directly caused her a pecuniary injury or loss (Deakin, Johnston, & Markesinis, 2012). It is a norm that a plaintiff may only seek to remedy a problem that has occasioned a loss on his part. In the instant case, the victim would have to prove the existence of medical expenses and costs, general damages as a result of her inability to continue anchoring news in NewsNow, and so on.

Good Grocers, Inc. would be held liable for negligence once the positive establishment of these elements is done. However, the company may raise a number of issues to counter the decision at this stage by claiming that the liability was shared between the parties, otherwise known as contributory negligence on the part of the victim (Gifford & Robinette, 2014). In this case, the company could argue that the victim placed herself in danger of such accidents voluntarily by wearing high heels; therefore, liability is to be borne by her partly. This would lead the court to apportion the liability between the parties (Gifford & Robinette, 2014).

Situation 2

Brief facts

Ms. Greene, an independent contractor, worked on Mothers’ Day, beyond her usual duties.

Issues

1. Is Ms. Greene an employee or an independent contractor?
2. Should Ms. Greene receive the same benefits as part-time employees?

Rule

Employment law

Resolution 1

Fundamentally, the difference between an employee and an independent contractor is with regard to their terms of service, where an employee is a worker whose duties are managed and controlled by the employer (Witt, 2007). In addition, employees have the obligation of submitting reports about their salaries and taxes. In contrast, independent contractors are self-employed, pay taxes on private terms, are responsible for expenses incurred in their jobs, and they have no supervisors in their jobs. However, a number of tests are used to understand the differences, as discussed below.

The Control Test

This test was laid in the case of Yewens v Noakes [1880] 6 QBD 530, where the court found that an employee was one who served at the mercy and instruction of his employer. In other words, the employee serves under the directive and oversight of his employer, whether exercised directly or through the employer’s delegated representatives. In the instant case, Ms. Greene did not serve under the command and control of her master, as she was merely called in to assist with chores (Witt, 2007).

The Integration Test

This is the second test to suggest that one is an employee, where the individual’s services to the organization are central to the business, as was stated in the case of Stevenson Jordan and Harrison Ltd vs. McDonald and Evans [1952] 1 TLR 101. In the instant case, Ms. Greene failed this test because her duties were not central and integral to the business (Lewin, Kaufman, & Gollan, 2011).

The Multiple Factor Test

This test suggests that there ought to be applied an omnibus test in looking at all circumstances surrounding the employment when one is determining whether a person is an employee or independent contractor. The circumstances that Ms. Greene worked in show that she was an independent contractor, as she had merely been called to serve for a short while (Lewin, Kaufman, & Gollan, 2011).

Resolution 2

Ms. Greene cannot receive benefits as a part-time employee, as she is not an employee of the business. Benefits for part-time employees are given to persons who fall under the meaning and scope of employees, but serve shorter durations that usual. The assessment above determines that Ms. Greene was not an employee (Lewin, Kaufman, & Gollan, 2011). As an independent contractor, she is only entitled to the remuneration that was agreed between her and the employer.

References

Deakin, S. F., Johnston, A., & Markesinis, B. (2012). Markesinis and Deakin’s tort law. Oxford, UK: Oxford University Press.

Gifford, D. G., & Robinette, C. J. (2014). Apportioning liability in Maryland tort cases: Time to end contributory negligence and joint and several liability. Maryland Law Review, 73(3), 701-1018.

Lewin, D., Kaufman, B. E., & Gollan, P. J. (eds) (2011). Advances in industrial and labor relations, volume 18. Bingley, UK: Emerald Group Publishing Limited.

Witt, J. F. (2007). Contingency, immanence, and inevitability in the law of accidents. Journal of Tort Law, 1(2), 1-41.