Facebook
Home Uncategorized Page 4

Uncategorized

What are Independent Contractors?

What are Independent Contractors?

In contrast to an employee, an independent contractor enters into an agreement with an employer while still maintaining their original “methods and processes” in terms of how they operate. They are not obligated to any requirements other than what is specified within the contract that was drawn up and signed by both sides. 
These may include individuals such as construction workers, electricians, or builders. In general according to tort law, an employer may not be pursued as liable for negligence on the part of the independent contractor as they are not, essentially, their actual employee.
Despite the presence of such a distinction, tort law does present exceptions where the employee may not escape due process. These include when the independent contractor has caused harm to a party not directly involved in the proceedings. In a case such as this, the hiring party may be held liable for failure to practice care and discretion in the choosing of a “competent and careful” independent contractor. 
In addition to this would be circumstances in which the independent contractor acted with the “negligently given” orders set forth by the hirer. Two other important distinctions exist, which hirers of independent contractors would do well to know as concerning tort law. Entities may be held liable when the action deficient is one that is “integral to the Principal’s business.” An example of this would be that a law firm be held liable for negligence due to its failure to provide a service despite its use of an independent contractor. 
Also, those taking on independent contractors are presumed to be well aware of risks, which the work they are seeking to be completed, possess. Due to this, they will be pursued as is in reference to that of vicarious liability. Though the identification of independent contractors seems to be a straightforward process, some find it quite difficult such as in terms of the medical field. Due to this, we will touch upon certain qualifications, which will help make the decision of whether or not you are hiring an independent contractor or an employee. 
These include: the power able to be imposed upon their work, the individuals involvement in distinct work, adequate supervision, competency required, use of own resources, time of contract, compensation plan, work being a custom to practice, the intention of parties involved, and the presence of benefits. You will be able to determine the distinction depending on replies to each qualification. Knowledge of the presence of an independent contractor will be worthwhile in also, then, being aware of the laws you must abide by according to tort law.

Servants

Servants

The institution of such a statute did not prevent the occurrences of injuries, however, and only existed in keeping employers from being pursued. One exception did exist, however. It was stated that if the employer was previously informed of the employee-at-fault’s previous history of careless behavior, and did not take any appropriate action against them, then the employer would finally be liable for such an injury. 
Despite this, however, there still left the question of who exactly would testify to prove such serious accusation. This may be the reason why this rule concerning servants came to be grouped under the heading of “the 3 wicked sisters of common law,” which also included “contributory negligence” and “assumption of risk.”
Change arrived, however, with the advent of the 20th century. Courts began to employ exceptions to the rule such as allowing suits to be filed against co-workers or “fellow servants” who were the supervisor as well as made this law only specific to instances in which the employees worked in the exact same department. Congress began to pass various new laws as well. The “Federal Employers’ Liability Act” was instituted to provide a voice for railroad workers. 
In addition, “workers’ compensation” statutes sprouted up everywhere to make it so that employees were guaranteed restitution for any injuries or illnesses they may have acquired while at their place of employment. As we have seen, then, previous laws made it difficult for servants/employees to seek adequate compensation due to rigid and not well thought out negligent law.
It is hoped that, now, with the advent of increasingly protective legislature concerning the workforce, that incidents of mistreatment of unfair conditions will be a thing of the past. This will be a slow process, however, as groups on both sides of the debate still contain individuals who look to cheat the legal system in any way possible.

Immunities Vicarious Liability

Immunities Vicarious Liability

Imputed negligence 


Though one may be curious as to how exactly justice is served when the individual who committed the act is not directly pursued, there does exact adequate reasoning to support vicarious liability as a form of imputed negligence. We will use the previously mentioned situation involving the employer’s absorption of the repercussions following their employee’s misguided actions. In such a case, the employment of vicarious liability is instituted as a way to ensure that the party genuinely responsible is held accountable or answerable. 
With the assumption that the employee is abiding by “company standards,” for instance, there will be no other way to ensure that the harm stemming from such practices be put to a halt, except to pursue the originator of such policies. The hope is that prevention of future incidents will be achieved by these means. As we’ve already dealt with these instances of parental and employer liability as falling under this category of imputed negligence, we will move to “principals’ liability.” 
Under this rubric, the owner of a vehicle will be made liable by any accident that has occurred as a result of that specific machine, regardless of whether or not they were behind the wheel at the time. Therefore, the loaning of automobiles much be done with discretion. Despite this fact however, vicarious liability for the owners of planes has been slow in equal pursuance of such a consequence.
Despite vicarious liability as a form of imputed negligence seeming to put the employer in a tight spot more often than not, there does exist one route that they may choose to go following such a suit against them due to the claim against their employee. This avenue would be that of “employers’ indemnity.” Following the claim settled against them, the employer may then go ahead and take the option of suing their employee to reacquire the damages they lost in the suit. 
This would probably do well to satisfy the criticisms that arise from a debate of vicarious liability, one of which being the belief that it exists as a true adversary to the “legal standard of natural justice.” It appears that there will not be a general consensus as to the continuance of such a practice in liability 

Intentional Interference with a Person or Property

Intentional Interference with a Person or PropertyThe act of Intentional Interference with a Person/Property are civil litigations for damages, arising from invasion of one’s personal space or personal property.  All tortious charges of intentional interference with person/property involve intent, which provides for a civil wrong knowingly committed by the offender.  This is contrasted with a tort of negligence, which results from lack of concern or responsibility on behalf of the offender.

With a Person: with a Person/Property:

Intentional interference with a person is also known as Trespass to the Person.  This is classified as any unwanted, offensive, or unjustified interference with a person’s body, liberty or rights.  Charges of interference do not necessarily burden the plaintiff with proving damages, rather with proving intent to commit the offense.

With Property:

As the charges of Intentional Interference with Property are tort and not criminal charges, the necessity of wrongful intent is not present.  The burden of proof lies solely on the prosecution’s ability to prove intent. The charges of Intentional interference with property include trespass to land, trespass to chattels, and the charge of conversion.

Principles of Compensation in the Legal System

Principles of Compensation in the Legal System

The American Legal system, or ALS, has greatly altered the way it handles tort liability. The ALS often considers tort liability cases as a means for people to get compensation.
At its current state, The ALS grant awards in liability cases based on specific factors of the case. In certain tort liability cases there are a range of awards. For example, a person that loses the use of a limb may receive a judgement that falls within a specific range. 
However, there are also awards based on the psychological anguish associated with a case. Often however, the amounts awarded in tort liability cases are considered arbitrary because no amount of money can compensate for cases that involve real pain and suffering.
Regardless of the type of tort case, class action or individual, the ALS is working to ensure that the system is not abused. Tort reform will allow efforts to strive for  a more efficient legal system in which the victims, and the accused can enjoy equal treatment by the law. In addition, frivolous lawsuits will be all but eliminated.

A Quick Guide to Vicarious Liability

A Quick Guide to Vicarious Liability

Vicarious Liability is a secondary liability that renders superior parties responsible for the actions of their subordinate parties. 

Torts Court 
Vicarious Liability in torts is generally subject to the discretion of the court and will often come into play when the court finds negligence assault
Vicarious Liability in Domestic Relations is an applied concept of Secondary Liability. Secondary Liability is technically when torts committed by a tortfeasor are facilitated or assisted by a second party. 
Parents or guardians who are found liable for torts of Vicarious Liability may have their parental rights or guardianship reviewed by a family court of appropriate jurisdiction, as they may be found to have created an unfit environment for responsible child development.  
In such cases where Vicarious Liability finds the parent or guardian negligent or in direct assistance to the tortious offenses of the minor, the court may revoke or intervene with guardianship.  
Thus  Vicarious Liability in domestic relations may have secondary consequences aside from the intended liability for compensation for torts committed by subordinates.

An Overview to Economic Relation Torts

An Overview to Economic Relation Torts

Torts of Economic Relations are allegations of direct interference with business relationships, agreements or prospects, which result in quantifiable losses. When suing for Torts of Economic Relations, it is important that the plaintiff be able to prove that the defendant acted intentionally with knowledge of his or her own actions, and that the subsequent actions were injurious to the claimant in the form of economic losses.  Torts of Economic Relations normally fall under classifications of Interference with Contractual Relations, Interference with Prospective Advantage or claims of Injurious Falsehood.

Injurious Falsehood: 


Injurious Falsehood is a tort regarding the intentional utterance or publication of a lie for the purpose of causing harm to another. Injurious Falsehood is a similar claim to defamation, which regards to statements which seek to tarnish or damage one’s reputation. The main difference between defamation and Injurious Falsehood is that statements of Injurious Falsehood must be conjured, false, or stated without regard to their credibility. The burden of proof in this tort involves proving that the defendant knew his or her assertions were untrue, and that he or she acted only to damage the plaintiff with said assertions.

Interference with Contractual Relations:


Interference with contractual relations is a violation of tort law which occurs when a third party intentionally attempts to alter a contract between two other parties. This interference can take place when the third party encourages one of the two contracted parties into breach of contract, or disrupts either party from being able to fulfill their respective side of the contract in question.  It is clearly stipulated that interference is only a violation of tort law when the interfering third party has no audit or supervisory privilege to the contract itself, and thus has no immunity from the charge.

Interference with Prospective Advantage:     


Interference with Prospective Advantage is a form of tortious interference by a third party in an economic relationship with the prospect of future economic gains for the plaintiff. The defendant in this allegation, must have acted on his or her own awareness and intent to disrupt the economic relationship at stake. Furthermore, the relationship itself must have been observably disrupted, and quantifiable damages must have befallen the plaintiff as a result of the defendant’s actions of Interference with Prospective Advantage.

Interference with Contractual Relations

Interference with Contractual Relations

Interference with contractual relations is a violation of tortimmunity 
Interference to contractual relations charges may also be pressed upon third parties who seek to prevent a future contract which is reasonably solidified upon the time of interference.  
In these cases, the would-be contracted parties may sue for interference if they can substantially prove that the third party’s actions resulted in the negation of a prospective contract that would have otherwise been signed and would have otherwise been of benefit to either party. 
This is known as Prevention of Future Contracts, and usually must reference the renewal of an expired contract as evidence in order to be successful.  Otherwise, it is difficult for the claimant of Interference to provide sufficient evidence that a contract would have been beneficial in lieu of past records.
Intent 


Employee poaching applies to contracted employees (not “at-will” employees) and involves the persuasion of said employees to violate their employment contracts and seek employment elsewhere.  This is often done as a measure to hurt a competitors business or build a team of already-proven workers. 
If the “poachers” intent can be proven as tortious, the original employer may sue the employee for Breach of Contract, as well as the “poacher” for Interference with Contractual Relations.

Are Immunities Given to Public Officers?

Are Immunities Given to Public Officers?

The government enjoys sovereign immunities intort court cases. In addition, public officials also enjoy immunities from certain cases. In combination, sovereign immunity and immunities for public officers, provide for an avoidance of questions of liability for the government. 
However, employees of the government may be found liable if they failed to act in accordance with their duties as prescribed by their job description. For example, a police officer that fails to help a woman under duress, may be subject to a tort case based on the job responsibilities of public officials. They would not be able to escape the case based on any of the types of immunities.
There are immunities granted to public officials under Federal and State Statutes. For example, Illinois enacted the “Local Governmental and Governmental Employees Tort Immunity Act.” Those types of laws prevent an abuse of actions against the government or government officials. 
Immunities for public officials can be waived in cases where employees failed to perform their expected duties. In addition, under very rare circumstances, the government itself may waive immunity depending on the laws in that jurisdiction. 
Part of the reason that public officials enjoy immunities that directly result from their employment, is to prevent lawsuits which would continuously disrupt the government and services provided by the government. Tort lawsuits, which are frequently seen as frivolous, often do not apply to any governmental agency or its employees.
Members of Congress cannot be held liable for their actions as a member of Congress, including the manner in which they vote. Those votes may, or may not directly effect an individual but that individual cannot bring an action against that public official because of immunities enjoyed by those individuals. 
Prosecutors, as public officials, enjoy certain and specific immunities. For example, prosecutors cannot be held liable for their actions during a Grand Jury hearing. Yet, they can be held liable for issues that arise as a result of their investigation of that case.
Public officials do receive certain immunities in regards to being liable. However, the immunity is not absolute and it can be waived directly or indirectly. Immunities may be waived if a public official acts in opposition of law, with the knowledge that they are doing so. 
The law states that the public official must have been warned about the breach of law, or must have had previous knowledge of the law, in order for the government to waive any immunities. The immunities granted to public officials are not an explicit right in cases where their conduct was obviously contradictory to the law or to public safety.

Justifiable Reliance Materiality in Tort Law

Justifiable Reliance Materiality in Tort Law

Justifiable reliance represents the core to any charge of misrepresentation and nondisclosure, as it represents the specific standard to which a representative relationship can be ascertained to the point of legal responsibility. Justifiable reliance, simply put, indicates the extent to which one can be held to have relied on the representations of another. 
In tortious claims, it refers to the extent than one can hold another party liable for their misrepresentations. As an example, if one purchases a product that guarantees that it will wash your car, the buyer is entitled to certain level of justifiable reliance on the belief that it will do as advertised. 
If the product actually removes the paint from your car, then the level of justifiable reliance will guarantee a high level of liability on the makers of the product, who misrepresented its effects to the degree that the buyer sustained a significant loss (the damage done to car).
 
For justifiable reliance to pertain directly to liability, it must be said to have an acceptable level of materiality. Materiality means that the product or service’s selling point must have a precise bearing on the nature of what is represented and the part that it plays in determining its ability to be purchased. 
It does not necessarily have to represent something solid, but an action or an effect.  Materiality could also be extended to services enacted by an individual: say you actually paid someone to actually wash your car. The actually washing of the car still represents the materiality, whether it is a person or product that does it.
 
Generally a key part of determining justifiable reliance on a product or service is the effect its materiality holds for other similar minded people. Car washing is a material promise because it is something that could be expected by everyone, as help as condition of purchase by any two, like-minded individuals. 
If however, one person felt that in order for someone to be paid to wash his or her car, that person had to be blond, that would be specific to them, and would not constitute a form of justifiable reliance. Simply put, it would be immaterial.
 
So, justifiable reliance, and its basis on materiality, forms a key part when determining whether misrepresentation or nondisclosure has occurred. If the product guarantees a material promise, then an individual is entitled to expect that the product will fulfill that promise, in the form of justifiable reliance. 
If the product does not fulfill that obligation, either because the seller or creator misrepresented its ability, or failed to disclose an element that would prevent it from fulfilling that promise then they have not adhered to the promise of justifiable reliance. Under tort law, if that failure of justifiable reliance on the part of the seller has led to a loss on the part of the buyer, then they are able to hold the seller responsible for that loss (even if that loss represents something as small as a refund on the purchase).
1...345...8Page 4 of 8
Disclaimer: There is no confidential attorney-client relationship formed by using Laws.com website and information provided on this site is not legal advice. For legal advice, please contact your attorney. Attorneys listed on this website are not referred or endorsed by this website. By using Laws.com you agree to Laws.com Terms Of Use.
Facebook
©

Attorneys, Get Listed

Free Coupon
X