Facts

Keith Jackson (Jackson) was employed by Publix Super Markets Inc (Publix).  One of his co-workers was Edgar Ramos (Ramos).  Ramos’ job was to use a vehicle called an “Ottawa tractor” to move trailers to loading bays.  On the date of accident, while Ramos was reversing a trailer using such a tractor, Jackson was crushed between the trailer and the loading dock and suffered fatal injuries.

The reversing alarm on the tractor in question was broken and Ramos confirmed that he had known of this for some months.  He had not reported this to maintenance nor completed an inspection report.  Other maintenance inspections had not detected the error and the tractor was overdue for a safety inspection.

There had been other accidents at the distribution center, but none occurring in this manner.

Action

Chalunda Boston, as personal representative of Jackson’s estate, sued Publix and Ramos for Jackson’s death, alleging an intentional tort by Publix and gross negligence by Ramos.

Publix and Ramos relied on the “worker’s compensation immunity” asserting that worker’s compensation benefits were the plaintiff’s exclusive remedy.

Statutory Framework

The applicable Florida law establishes a strict liability system of compensation whereby injured workers are guaranteed rapid compensation for work injuries but are precluded from bringing a common-law negligence action.  An employer’s liability to pay workers compensation benefits took the place of any other liability to an employee, save for when the employer had committed an intentional tort causing injury or death.  An intentional tort was defined to include circumstances where the employer engaged in conduct which they knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death, and the injured employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger in order to prevent the employee making informed judgment about whether to do the work.

A similar immunity was available for co-workers, save for when the co-worker had acted with willful and wanton disregard or with gross negligence and their acts had caused injury or death․

Trial

Publix and Ramos sought summary judgment from the trial court.  Summary judgment was granted on the grounds that the evidence did not show that Publix had done something which it knew was ‘virtually certain’ to injure or kill Jackson.  It also found that the risks involved had not been concealed and that the danger should have been obvious to Jackson.

Appeal

Boston appealed, triggering a de novo review of the summary judgment finding immunity.

Determination

Previous cases had noted that the ‘virtual certainty’ requirement meant a plaintiff had to show that a danger would cause an accident almost every time.  There also had to be intentional and deceitful conduct by the employer.

The Court of Appeal found that the evidence did not support the exclusion of immunity: there was no evidence of prior similar accidents, and the defective backup alarm made an injury more likely but did not create a virtual certainty of one.  Hence summary judgment was correctly given for Publix.

Concerning Ramos, the key issue was whether he had acted with gross negligence.  Previous cases had defined gross negligence as an act or omission that a reasonable person would know is likely to injure another (1).  There had to have been circumstances of “imminent” or “clear and present” danger amounting to more than normal and usual peril; also required were knowledge or awareness of the imminent danger and the action or omission occurring with “conscious disregard of consequences” as opposed to “careless” disregard (simple negligence) or the more extreme “willful or wanton” disregard (culpable or criminal negligence) (2).  The evidence raised a ‘material issue of fact’ as to whether Ramos had acted with gross negligence and so summary judgment was not warranted.

Outcome

The Court of Appeal affirmed the judgment for Publix but reversed that for Ramos and returned the matter to the trial court for further proceedings in respect of gross negligence.

Notes

(1) Arguably this a middling standard for gross negligence.  Setting the standard lower, see R v Pittwood, 19 TLR 37 (Taunton Assizes, 1902).  Setting it higher, see Andrews v DPP, [1937] AC 576 (UK, 1937).  Pittwood’s case can be difficult to locate – get in touch if you’d like a pdf of it.

(2) Cf R v Crabbe, 156 CLR 464 (Aust., 1985)

A note on some factors considered in an application to stay a court order, based on this report in the Montreal Gazette.

Facts

In 2011 the Canadian government opted to destroy that country’s national longarms registry.  Experience had found the registry to have limited policing value and caused significant expense.  It commenced destroying the data on the over-5,000,000 registered rifles and shotguns.

The Province of Quebec announced an intention to create its own longarm registry based on data from the disbanded Federal registry.  The Canadian federal government declined to release registry data relating to Quebec and indicated that destruction of that data would proceed.

Action and Appeal

The Provincial government applied to the Superior Court of Quebec which ruled in its favour.  An appeal by the Federal government to the Quebec Court of Appeal resulted in a decision on 27 June 2013 overturning the Superior court’s decision on the grounds that “the data in the gun registry did not belong to Quebec”

Application

The Province announced its intention to appeal to the Supreme Court of Canada.  It sought a “safeguard order”, which would prevent the Federal government destroying the data relating to Quebec until a ruling was made by the Supreme Court.

The application for a safeguard order was dismissed.  Two factors were noted as significant by the Court –

1. Maintaining the registry relating to Quebec cost the federal government approximately $100,000 a month.
2. The cost to Quebec of creating its own registry ex nihilo was not a sufficient reason to suspend a court order.

Outcome

The Court of Appeal decision allowing destruction of the data to proceed remains in force

Note

The Quebecois government has announced its intention to seek a safeguard order from the Supreme Court of Canada.  The Federal government has not indicated whether it will destroy the data relating to Quebec or await any further decision from the Supreme Court

I’ve previously generated a case note on identifying the employer-employee relationship.  This issue was front and centre again in the recent decision of the US 11^th Circuit Court of Appeals in Michael Henry Smith v BP America Inc (Wilson, Jordan and Anderson JJ, 5 July 2013, unreported).

Facts

During the oil spill following the 2010 explosion of the Deepwater Horizon oil rig, Mr Smith (plaintiff) found work as a boat hand through Marine Contracting Group LLC, a labour hire agency.  He was placed in the employ of Oil Recovery Company (ORC) where his duties were to install and maintain floating oil barriers off Orange Beach in Alabama.  While performing these duties on 12 May 2010 he fell overboard.  Later that day he was dismissed as “an unsafe and problem employee”.

Action

The (self-represented) plaintiff brought proceedings in the US District Court for the Southern District of Alabama against Moran Environmental Recovery LLC (Moran) (this company’s relationship to ORC and BP is not explained in the judgment) based on claims –

1. In negligence under the Jones Act
2. For maintenance and cure (that is, living and medical expenses) under general maritime law
3. For unseaworthiness under general maritime law

Trial

The plaintiff settled his claim against Moran.  His case against BP proceeded to discovery.  The Court denied his motions to compel discovery of very broad classes of documents (e.g. “all photographs related to the Deepwater Horizon disaster”) but ordered narrower discovery.  Following discovery he sought partial summary judgment, being a determination that BP was his employer.  BP sought summary judgment dismissing all of his claims.  The plaintiff’s application was rejected.  The defendant’s motion was upheld on the grounds that –

1. the defendant was not the plaintiff’s employer, defeating his Jones Act and maintenance and cure claims; and
2. the plaintiff had not established that BP owned the boat from which he fell or that it’s unseaworthy condition caused his injuries.

The plaintiff’s application to set aside this decision was denied.

Appeal

The plaintiff appealed against –

1. The denials of his motions for discovery, partial summary judgment, and alteration or amendment of the judgment;
2. The grant of summary judgment to the defendant.

Determination

• Denial of discovery

The Court of Appeals confirmed that an abuse of discretion is needed to reverse a trial court’s refusal to compel discovery.  No such abuse had been shown as the burden of the plaintiff’s request outweighed its likely benefit and the narrower class of documents BP was ordered to produce was sufficient to resolve the claims.

• Denial of partial summary judgment and grant of summary judgment to BP on the Jones Act and maintenance and cure claims.

The Court of Appeals noted that a plaintiff must establish an employee-employer relationship against a defendant to found a claim under the Jones Act or in a claim for maintenance and cure.  The presence of control was key to identifying an employer.  Control can be shown by (inter alia)

1. Direct evidence of the exercise of control over an plaintiff;
2. Payment of wages the plaintiff’s wages
3. Providing equipment required for the plaintiff’s duties
4. Evidence that the employer had the right to terminate its relationship with the plaintiff.

BP’s evidence established that the plaintiff was hired by Marine Contracting to work for ORC which was an independent contractor with BP.  BP could neither hire, fire, supervise nor control ORC employees.

• Grant of summary judgment to the defendant in respect of the seaworthiness claim.

The Court of Appeals confirmed that “a shipowner has an absolute duty to furnish a seaworthy ship” and that if a seaman is injured by an unseaworthy ship, they may seek recovery from its owner.  The plaintiff’s evidence did not establish the boat’s owner, identify any unseaworthy condition, or link any such putative condition to his injuries.  As such, summary judgment for BP was properly granted.

• Denial of alteration or amendment of the judgment

The test for an appeal of a denial of a motion to alter or amend a judgment is the abuse of discretion.  No such abuse could be identified.

Outcome

The Court of Appeals dismissed the plaintiff’s appeal.

An article in the December 2011 ABA Journal noted the now-disputed science around shaken baby syndrome (1).  This decision, reported in the Belfast Telegraph, adds to the questions around criminal prosecutions based on this syndrome and raises the issue of compensation for persons convicted in respect of it.

Facts

In 2000 Lorraine Allen (then Harris) was convicted of the manslaughter of her son by shaking.  A term of imprisonment was imposed.  Further expert evidence was put forward in 2005 which resulted in her conviction being quashed.

Action

Ms Allen sought compensation for the unjustified imprisonment which was denied by the UK government.  Her appeals of this denial – based on administrative law – were rejected by UK courts.  Ultimately she appealed to the European Court of Human Rights on the basis that this denial breached her right to the presumption of innocence under Article 6 of the European Convention on Human Rights.

Decision

The ECHR concluded that the UK courts has properly concluded that she had not established beyond a reasonable doubt that there had been a miscarriage of justice: the handling of the matter by Britain’s courts had been consistent with a presumption of her innocence.

(1) Mark Hansen, Unsettling Science, 97(12) ABA JOURNAL 49 (2011).

Late in 2012 there was a decision on failure to pay workers compensation benefits in a timely manner in the Supreme Court of Texas.  The matter, Texas Mutual Insurance Company v Morris, was an appeal from that state’s 14th District Court of Appeals. .

Facts 
Lance Morris (Morris) sustained a back injury while working for the Justin Community Volunteer Fire Department on 12 June 2000.  A workers compensation claim was lodged and liability was accepted by Texas Mutual Insurance Company (TMIC), including funding for a lumbar laminectomy for herniated discs in 2003.  TMIC subsequently disputed the causal relationship of the disc herniations to the 2000 injury.

Dispute
Morris sought and attended two unsuccessful benefit review conferences.  Ultimately a case hearing by the Texas Department of Insurance Division of Workers’ Compensation found that the 2000 accident had caused or aggravated the disc herniations and that TMIC remained liable to pay compensation.

Morris thereafter sued TMIC over this denial and delay in paying benefits.  He alleged a breach of article 21.21 of the Insurance Code, failing in a common law duty of good faith and fair dealing, and breach of the Deceptive Trade Practices Act.  He was successful at first instance and partially successful on an appeal by TMIC to Texas’ 14th District Court of Appeals.

Appeal
TMIC appealed to the Supreme Court of Texas.  The Supreme Court rejected the submission that the court at first instance lacked jurisdiction because Morris had not exhausted the administrative remedies available under the Workers’ Compensation Act: while there were means for expediting the review process he had not used, the Act had apparently intentionally not imposed a mandatory deadline and so any delay went to mitigation of loss rather than jurisdiction.

TMIC submitted that actions for unfair claims practices under Insurance Code §541.060 and breach of the common law duty of good faith and fair dealing were irrelevant in workers compensation matters.  The Court upheld this contention consistent with its own recent decision in TMIC v Ruttiger.  The Court also found that Morris’ claim for misrepresentation of an insurance policy under Insurance Code §541.061 was ill-founded on the facts, undermining his action under the Deceptive Trade Practices Act.

Outcome
In the result, the Court reversed the Court of Appeals’ judgment gave judgment that Morris’ claim be rejected.

Most lawyers become accustomed to hearing clients speak in clichés taken from television. I think we’ve all had the experience of hearing a retail assistant, for example, give you their cell phone number and then say dramatically “and that’s on twenty-four-seven”, leaving you wondering if they’re expecting President Obama to ring them at 3am for their views on how Canada is likely to respond to China bombing the Spratly Islands. These clichés have a particularly useful purpose however. They tell us something significant about the world we litigate in and suggest some tactics which lawyers should consider.

Narrative

One of the most natural ways of conveying both data and meaning is by telling stories: we might infer that when the Neanderthals buried their dead 400,000 years ago, that action went along with telling themselves stories about what would next happen to the deceased (1). As well as telling stories about what would happen to someone next, narrative is key to extracting meaning from what happened to them in the past. As Hayden White explains,

narrative figurates the body of events that serves as its primary referent and transforms those “events” into intimations of patterns of meaning that any literal representation of them as “facts” could never produce. (2)

That is, without narrative – the ability to identify meaningful patterns in events – reality can only be experienced as “one damn thing after another”.

Is this a problem?

The problem is hinted at by another point from White:

In historical discourse, the narrative serves to transform a list of historical events that would otherwise be only a chronicle into a story. In order to effect this transformation, the events, agents, and agencies represented in the chronicle must be encoded as “story-elements,” that is to say, characterized as the kinds of events, agents and agencies that can be apprehended as elements of specific “story-types”. On this level of encodation, the historical discourse directs the reader’s attention to a secondary referent, different in kind from the events that make up the primary referent, namely, the “plot-structures” of the various story-types cultivated in a given culture. When the reader recognizes the story being told in an historical narrative as a specific kind of story, for example, as an epic, romance, tragedy, comedy or farce, he can be said to have “comprehended” the “meaning” produced by the discourse. This “comprehension” is nothing other than the recognition of the “form” of the narrative. (3)

At present, the stock of narratives is dwindling, at least in part as a response to a shrinking in the means for conveying them. While one can look down on the predictable plots, formulaic dialogue and cardboard characters of umpteen cookie-cutter television dramas (NCIS, CSI: Bullamakanka, Silent Witness, Waking the Dead, Law & Order: Parking Infringements, etc etc), nothing gets away from the fact that they’re popular TV soundly packaged into an hour. The plausible influence of these programs on the available stock of narratives can be guessed at when one compares their popularity with (say), the relatively niche appeal of the utterly unheroic Oz, or the box office poison of largely unredemptive suffering in The Wicker Man (4), Beautiful Kate (5) or 2:37 (6). Much the same thing can be said about narratives drawn from fiction: in a wonderfully caustic piece, Harold Bloom described Stephen King as “an immensely inadequate writer on a sentence-by-sentence, paragraph-by-paragraph, book-by-book basis” and observed that J.K. Rowling’s “mind is so governed by clichés and dead metaphors that she has no other style of writing” (7), and another reviewer has questioned whether anything new – anything at all – can be done with the novel as a way of writing (8).

If there is also a high rate of illiteracy or low-literacy (and in Australia the figure now stands at about 46% of the population), this will lead to a couple of fairly easy-to-predict outcomes for the population –

1. A shrunken set of mental devices for making sense of reality.

2. A shrunken set of imaginable options for addressing any problem.

3. A reduced vocabulary, resulting in a person being unable even to express their interpretation of reality or any ideas for solving problems.

In practical terms, this means that a large part of the population might be aware of problems in their society but, quite literally, cannot identify them: they can only sense them (intuit might be a better word), and ‘sense’ any solution; further, both of these ‘sensings’ can only be expressed in an inaccurate way. In effect, problems and solutions will be for many people the mental equivalent of a mosquito buzzing in their ear, which may explain why hearing them express themselves on these points reminds one of someone swatting an insect (9).

A couple of examples are in order. In 2012, it was reported that murderer Julian Knight would be represented by senior lawyer Robert Richter in an appeal against a refusal of parole. Comments on the website of radio station 3AW included the suggestions –

he’s given more rights than the average citizen and free legal assistance to boot … Bring back the death penalty and try this SOB again

In (sic) the off chance he is released I hope a victim’s relative puts a bullet in Richter and Knight both. That would be justice.

The cops who arrested knight (sic) that night in 1987 I believe regret not killing him

In a similar vein, a columnist for the Herald Sun newspaper, commenting on American gun laws, noted the existence of the Constitution’s second amendment, but showed no capacity (or at least, appetite) to address the legal and cultural complexities of amending the US constitution and contented himself with dismissing it by saying “that little document was drawn up a long time ago” (10).

Faced with the news that paroled offenders had gone on to re-offend, Herald Sun readers responded with (11) –

Parole Board members should be liable for their poor decisions. Perhaps then they would not be so reckless. Sue them.

[A]nyone who has killed, raped or molested should not be allowed out on parole. If you must have a Parole Board, put victims’ family members on it so other members know what the families go through.

Make non-parole sentences mandatory for violent crime.

Your victims don’t get a second chance, so why should you?

They get it wrong far too often. Just scrap parole altogether and save us a lot of grief and money.

And so on, and on, and on.

Capitalizing

This insight into narrative suggests some extra tactics which a legal practitioner might find it useful to experiment with.

When taking instructions or interviewing witnesses, ask yourself what narratives they are using to make reality intelligible to themselves and to you. What are they innocently leaving out as ‘not plot essential’. Have they forgotten to mention something to a medical examiner, or mentioned it inaccurately, because their story can only ‘work’ that way?

Equally, without excluding relevant evidence or misleading the court, one could consider framing a case in line with a narrative of heroes, villains, redemption or happy endings that a jury can embrace. A jury itself could be offered the opportunity to see itself, at some level, as part of the narrative: the catalyst of the happy ending. A witness’ evidence – orally or on affidavit – could legitimately be crafted to make them a character in the unfolding drama. A party’s evidence might be shaped for them to emphasize a narrative which they can embrace and iterate and defend as part of their life story.

Ultimately, litigation is a business of applying a theory to whichever of a number of stories a court is persuaded reflects reality. Appreciating the impact of narrative on the accounts of parties and witnesses will add persuasive depth to the story one offers the court.

=================

(1) Marc Mennessier, Neandertal aurait été submergé par le nombre, LE FIGARO (Paris), 28 July 2011.

(2) Hayden White, The Question of Narrative in Contemporary Historical Theory, 23 HISTORY AND THEORY 1, 22 (1984)

(3) Hayden White, The Question of Narrative in Contemporary Historical Theory, 23 HISTORY AND THEORY 1, 20 (1984)

(4) Dir. Neil LaBute, 2006.

(5) Dir. Rachel Ward, 2009. Ward herself recognized that these films struggle to draw more than a niche audience: Rachel Ward, Cut! Time for a free kick for niche Australian movies and their makers, SYDNEY MORNING HERALD, 28 August 2009.

(6) Dir. Murali K. Thalluri, 2006.

(7) Harold Bloom, Dumbing down American readers, BOSTON GLOBE, 24 September 2003.

(8) Andrew Marr, Death of the Novel, The Observer, 28 May 2001.

(9) Many of the ideas here – including the insectoid metaphor – I have derived from Theodore Dalrymple’s incisive essay The Gift of Language, CITY JOURNAL, Autumn 2006.

(10) Baz Blakeney, Going into bat for greater gun control, HERALD SUN (Melbourne), 17 July 2013, pp. 22-23. There is no internet version of this essay – get in touch if you’d like a scanned copy.

(11) Letters page, Board has failed us, HERALD SUN (Melbourne), 17 July 2013, p. 24. There is no internet version – get in touch if you’d like a scanned copy.

One of the endlessly debatable questions in any matter involving employment law is whether a party is an employee or an independent contractor.  The recent decision of the Second District Court of Appeal of California in Beaumont-Jacques v Farmers Group Inc offers a useful review of the factors to consider.

Facts

Erin Beaumont-Jacques was employed by the defendant and certain related businesses for a number of years.  In September 2005 she was appointed as one of their District Managers and signed the District Manager Appointment Agreement (Agreement).  The Agreement required her to recruit and train agents for the defendants and granted her commissions based on their sales.  The defendants were enabled to set “goals and objectives” for these sales, and the plaintiff was obliged to comply with the Defendants “regulations, operating principles and standards” and engage in “normal good business practice”.  The defendants could verify the plaintiff’s actions by examining her records.  Both the plaintiff and defendant could cancel the contract with 30 days written notice.

The Agreement stated that

Nothing contained herein is intended or shall be construed to create a relationship of employer and employee.  The time to be expended by District Manager is solely within his/her discretion, and the persons to be solicited and the area within the district involved wherein solicitation shall be conducted is at the election of the District Manger.  No control is to be exercised by the Companies over the time when, the place where, or the manner in which the District Manager shall operate in carrying out the objectives of this Agreement provided only that they conform to normal business practice.

Trial Court

The plaintiff terminated the agreement in October 2009 and was paid out $196,085.20 under the contract.  In May 2010 she issued proceedings based on breach of contract, breach of the implied covenant, sex discrimination and §17200 breaches of the Business and Professions Code.  The defendants sought and were granted summary judgment by the trial court on the grounds that the plaintiff was an independent contractor.

Appeal

Because summary judgment was granted, the Court of Appeal reviewed the trial court’s ruling de novo, based on the evidence presented by the parties and any reasonable uncontradicted inferences.

Judgment

The Court of Appeal confirmed that the key question was “control of details”, identified as ‘the right to control the manner and means of accomplishing the result desired’; the existence of the right to control, rather than the amount of control, was important concept.

The plaintiff contended that the defendants’ “right to control the means and manner” was established in the requirement that she conform to their “normal business practice” and “goals and objectives”.  She also noted that her supervisor required her to provide annual business plans and attend meetings with him and other district managers, and that he was able to hire and dismiss agents in her district.  The Court of Appeal, however, did not accept that this established that the defendants had meaningful control over the plaintiff’s means of achieving her commitments as district manager.  It was further found significant that the plaintiff had been required to meet certain performance standards but not told by what means the defendant wished her to satisfy them.  In effect, they “[set the] results while leaving the means to the [plaintiff]”.

The Court further found that the plaintiff exercised meaningful discretion by (inter alia) –

• Recruiting, training and motivating agents to sell the defendants’ products;
• Determining her own working hours, vacations, lunch-hours and breaks;
• Preparing reports for and attending meetings of the defendants;
• Hiring and supervising her office staff and paying payroll taxes for them as employees;
• Paying her own costs for marketing, office space, telephone services and office supplies and also claiming those costs as a business expense in her personal tax returns; and
• Identifying herself as in her tax returns as self-employed.

Concerning the right to terminate the agreement, the Court had previously accepted that the right to dismiss at will was powerful evidence of an employment relationship.  However, that was less so in this case, where either party could cancel the contract.

Decision

The Court of Appeal considered the evidence as a whole and concluded that the court at first instance properly ruled that, as a matter of law, the plaintiff was an independent contractor.  Judgment was therefore affirmed.