Torts

Torts

Torts can be defined as laws that seek to offer remedies to individuals who are harmed by unreasonable actions of others. Tort laws are mostly based on the legal premise that assumes that people are liable for the consequences that are brought about by their own conduct (Rideout, 2013). As a result, tort laws usually involve the state since they result into injury of others. As a result, tort laws usually involve civil suits that are actions brought about to protect the private rights of an individual. The most significant categories of torts witnessed in education-related cases involve intentional and negligence.

Intentional torts

Intentional torts can be defined as offenses that are committed by individuals attempting or intending to do harm to other. Tort analysts argue that for intent to exist, the individual in question must have been aware that injury to other would result from an intentional act (Lunney & Oliphant, 2013). Assault to others is viewed as the most common type of tort. An assault is defined as an overt attempt to hurt or injure another person physically, or create a feeling of fear as well as an apprehension of injury. It is argue that there is no actual physical contact that needs to take place for an assault case to occur. On the other hand, battery which results from actual physical contact is an intentional tort. For instance, when a person picks up a broom stick and threatens to hit another individual with the same, assault has occurred.  If this person actually hits his/her neighbor with the broom stick; battery has occurred and both are intentional torts. Therefore, both battery and assault occurs if an individual threatens the other causing fear and apprehension, and when he/she actually strikes the second person it results into an actual injury.

In the United States of America, teachers who are accused of battery and assault are given considerable leeway to courts. This is more so because the main argument in the teaching curriculum in the United States is that battery and assault cases are often as a result of an attempt to discipline a student, or stopping one student from causing injury to another. That is the main reason why many courts in this country are usually reluctant to interfere with a teacher’s authority on especially on matters related to disciplining a student. However, there are courts who have found teachers guilty of battery if their disciplining methods are brutal, cruel or excessive. Other teachers have been found guilty of intentional torts in their disciplinary methods were administered with anger, malice, or with intent to injure. Courts often examine several aspects of thee disciplinary mode the teacher used to determine whether they were intentional torts that constituted use of excessive and unreasonable punishment. These look at the aspects such as the age of the student, the instrument used to administer the discipline if there is any, the nature as well as the gravity of the student’s offence and also the extent of the discipline (Krauss, 2012). They also consider a student’s previous conduct as well as the conduct and the temper of the teacher who applied the discipline.

For instance, there was a teacher who was sued in Louisiana for slamming a male student against bleachers, and then dropping the student to the ground which caused him to break an arm. This case came to be the infamous Frank v. New Orleans Parish School Board of 1967 and the teacher lost this assault and battery case. There was almost a similar case in Connecticut where a student was awarded damages after having sued the teacher for broken his clavicle after he was slammed against a wall and the chalkboard. This case is documented as Sansone v. Bechel case of 1980. According to the definition of intentional torts, it is clear that these two cases were extremely excessive although they may have been interpreted as disciplinary by the teachers who performed the acts. They also indicate that teachers may be held liable in such situations because of the injuries that are sustained by students as a result of teacher’s behavior.

Negligence torts

This is the second type of tort and it is usually seen in almost all administrative setups. This can be in all types of management and leadership such as in health care, educational setting and organizational setting among many other possible scenarios. The main difference between intentional and negligence torts are the fact that while in acts leading to injury in intentional torts are intent and somewhat premeditated (Lunney & Oliphant, 2013). However, most of the times acts leading to injury to others are not intended, expected or premeditated. In a school setup, students who have claims of negligence torts must prove to the responsible bodies that the school administration should have foreseen and prevented the suffered injuries through exercising proper care. In definition of tort laws, accidents that could not have been prevented even through proper care and precautions do not constitute of negligence.

In a school management setting, there are four aspects that must be present for negligence to occur. For starters, a teacher must have the duty to take care of the student and protect him/her from unreasonable risk. Second, the teacher in question must have failed in the duty in question by failing to exercise a reasonable standard of care. Third, there must be a causal connection between the breach of duty to care in a negligence tort and the resulting injury. The final aspect is that there has to be an actual physical or mental injury that had resulted from thee negligence. All these elements have to be proven in a court of law if any damages were to be awarded for negligence.

Intentional Tort scenarios

Scenario 1

Both intentional and negligence cases can occur either independently or together in many setups and systems today and not just in a school setup. For instance, there are people who neglect their roles in education, health care, organizational duties and civic duties among many others on a daily basis. This neglect can be both intentional and unintended and they can result in causing physical, emotional or reputational damage to another party (Hunt, 19993). For instance, torts are a significant element in the field of healthcare more so because both intentional and negligence torts can mean the difference between life and death of a patient. A good example to expound on this would be on the role of allied professionals in the field of health care. According to the definition given by the United States Supreme Court in Smith v. United State in 1993, Tort law can also be perceived as a wrong that is redress-able through awarding damages (Lunney & Oliphant, 2013).

In relation to the context of definition, I will look at the Robert Courtney case of 2001. Courtney was a pharmacist who was diluting drugs for his customers allowing him to make inflated profits. His behavior was first discovered by a sales representative by the name of Eli Lilly in 1998, who discovered that Courtney was selling more drugs than he bought (Collins, 2002). This was more so in a discrepancy in the infamous cancer drug Gemzar. Lilly even went ahead to conduct an internal investigation, but she came up with nothing and she was caused to close the investigation indefinitely. However, when she mentioned her earlier suspicions to a nurse in her building, who worked for an oncologist who used to buy drugs from Courtney in the year 2001, the oncologist had the drugs tested in the lab. The results were shocking as they showed that the drugs had been diluted some ranging between from a low as 10% to 50% of their expected content. The oncologist notified the authorities in the light of this new evidence.

When the authorities conducted their investigations, they estimated that Courtney had been diluting drugs from as early as 1990, and that would explain his wealth accumulation which had gone as high as $18.7 million. Research also revealed that during this time, the diluted drugs had been given to more than 4,200 patients who had purchased 72 different kinds of diluted drugs (Collins, 2002). Courtney was arrested in October of 2001 and indicted for his actions. He pled guilty to 20 federal counts of adulterating as well as tampering with chemotherapy drugs Gemzar and Taxol in 2002. He also admitted that he and Courtney Pharmacy Inc., his corporation, had been filling false Medicare claims, conspired to traffic drugs and also was in possession of weakened drugs. Courtney was sent to 30 years in federal prison with no chance of parole.

Looking at the above situation, this was an intentional tort for there is no way one can make the same mistake repeatedly for more than 10 years. This shows that Courtney had no remorse of his actions, and that he was only sorry that he was caught. Additionally, Courtney was in the drug diluting business for the accumulation of illegal profits, no wonder he did not even care whether his patients died or lived (Collins, 2002). His assets of approximately $18.7 million two months before he was arrested show that his illegal profits had accumulated over the years, and he had no intentions of stopping his behavior any sooner. Additionally, as a person who had majored in pharmacy at the University of Missouri in Kansas City, he should have been guided by the ethics of every healthcare practitioner.

The most significant objective of every pharmacist is to take part in improving a patient’s health, their safety as well as their well-being by providing top-notch drugs. This is also the most significant objective of every principled health care provider who wants the conditions of his patients to improve (Zabinski & Black, 2014). So as to achieve these objectives, one need to understand that that healthcare matters demand a significantly high alertness levels and the institution appropriate action more so with respect to incidences of illicit, incompetent, unethical or inappropriate behaviors by any member of the health care providing team. Although one may not meet all these values, it is expected that every health care or a professional allied to this field meets the values and the ethics that promote human life through provision of quality healthcare.

Courtney’s action affected many people in his community. This was not only the estimated 4, 200 customers who he sold his medication to. There were also other parties who were affected by his greed. For instance, his father who believed him to be “a saint” was greatly disappointed in him and he could not believe in what he was doing (Collins, 2002). Additionally, Robert Courtney was a deacon in the Assembly Church in Kansas City Missouri. This church could not also believe in what Courtney had been doing all along. The church even vowed to return $600,000 that Courtney had contributed towards its building.

Other than that, there were many law suits that followed in light of Courtney’s greed and his profit making scheme. He was named as a defendant in at least 300 suits for wrongful death and fraud. This included many hundreds of area patients who sued Courtney and his pharmaceutical makers. They believed that the drug companies where Courtney ordered his drugs were negligent; otherwise, they should have noticed the discrepancies that were noticed by Lilly.

Scenario 2

Tort doctrines seek to promote integrity as well as the sense of responsibility among individuals. There are many negligent ways that individuals that can cause harm to their friends or organizations. Many employees today have a tendency of “stealing time” from their organizations today not knowing that it can be interpreted as tort under employment laws. Employment law refers to a body of law governing the relationship between the employer and employees, including individual employment contracts, the enforcement of contract and TORT doctrines, and a group of statutory guidelines on matters such as protection from discrimination, the right of organizing and negotiating collective bargaining agreements (or CBAs), health and safety, and most importantly, wages and hours. Beyond establishing an economic bond between the employee and the employer, work provides an authoritative structure for organizing cultural and social life. The employment relationship involves more than the exchanging labor for wages. Self-worth, satisfaction, dignity, and accomplishment are frequently attained by one’s employment duties, performance, as well as rewards. Over time, employees have secured more legal rights as governments have passed laws that grant them the authority and power to engage in collective bargaining, unionize, and to protect them from discrimination on the basis of gender, race, or disability. The advancement of employment law makes obvious the importance of work. The legal protection of employees has raised a number of pertinent issues, among them the abuse of rights by employees who steal company time. Theft refers to the misappropriation of anything of value that belongs to another by means of deceitful conduct, representations, or practices (Daft & Marcic, 2006). The intent to deprive another party permanently of whatever is the subject of misappropriation (in this case the company time) is essential. Employees taking longer breaks and lunch hours are essentially stealing company time and, therefore, it is essential to enact laws to protect companies and make the practice punishable, just like any other form of theft.

 

 

Protecting Corporation from Theft of Time Using the Law

Legalism legitimizes the dominion of employees by capitalists. The interconnection between the market, the law, and the state is intricate. The protection of established order is among the vital functions of law. The state has enacted laws to defend itself, including those touching on sedition and treachery. Most governments have also granted themselves special emergency power that can be invoked during times of crisis. The construction, commodification, as well as regulation of time in the workplace, should be viewed as a political economic development. The emergence of time theft as a form of crime against capital has been contextualized within organizational transformations that define neoliberal economies, namely the prominence of decentralized, outsourced, and progressively more competitive labor-market conditions. The theft of time has been denigrated as a counterproductive conduct that allegedly costs corporations billions of dollars every year in terms of business failures and lost revenues (Daft & Marcic, 2006). While surveillance may be a vital mechanism of direct and managing employees, the workplace is not a complete institution and workers often evades a number of technological gawks of the management. Time theft is a concept that is founded on the view that time is a quantifiable commodity that can be assigned some value. Workers have been blamed for stealing a number of things from their employers. This is through taking materials that do not belong to them or through intentional negligence costing their employers a lot of money. However, the emphasis on as criminals rather than mere sluggards or indolent individuals is a relatively new concept. This is where the concept of tort law comes in because if an employee intentionally took something that might bring harm to an organization, or neglected doing some duty that would hurt the company; he/she can be charged in a court of law.

The concept of time theft is one of the most common form of intentional and negligence employee tort that exist in organizations today (Vance & Paik, 2015). Over the past three decades, the manner in which the theft of time is defined has changed very marginally. It is frequently defined as making personal calls while on duty, arriving late for work, taking extended coffee and lunch breaks, leaving work to attend to personal errands, working at a sluggish pace in an attempt to create overtime, too much socializing with fellow workers, faking illnesses, or using company premises and time in conducting private business. Other tendencies that also qualify as time theft include claiming unjustifiable sick days, arguing with clients, falsifying time sheets, working while under the influence of drugs and alcohol, sleeping on the job, as well as the illicit personal use of email and internet services of the company (Ferrell & Fraedrich, 2016). Workplace deviance is not only a type of material theft but is also perceived as a broad attempt to sabotage the prescribed labor process by deliberately or inadvertently reducing productivity. The perceiving of time theft as a conduct in need of punishment is founded in the calculated onslaught against the working class. Employers should reserve the right to question the workers based on the genuine proprietary relations. In this regard, time at work is a commodity of the employer. These forms of social realities have assumed ideological forms that articulate certain objective relations emanating from the social dealings of production, with the law serving the purpose of a normalizing agent.

There has been a superseding conjecture that the profit-making activities of businesses and corporations are intrinsically good and that any demeanor at work that is not congruent to such goals is deviant or unlawful. Surveillance techniques have been deployed and rationalized principally on these grounds. In addition, it must be conceded that order cannot be preserved through exclusive use of force but through winning the passive and active consent and conformity of the employees (Ferre,, & Fraedrich, 2016). The financial ramifications of employee theft of time vary widely, and the accused mockery of employee crimes against the economy and the corporation has been extremely bogus. At the face value, it appears that the economic sufferings of the time could be pinned on not only an ineffective, but also a largely criminal labor force.(Baumeister & Bushman, 2008) The problem of time theft has endured for a very long time. In 1982, it was reported that the American economy lost $125 billion due to time theft. By 1988, this value had skyrocketed to about $200 billion. The Conference Board of Canada noted that workplace theft of time cost Canadian employers approximately fifteen billion Canadian dollars in 1982 (Boswell 1989). From these findings, it was concluded that employees were accountable for approximately twenty-five percent of all business failures due to their extended lunch breaks, as well as idle talk around the workplace.

In reaction to these concerns, the implementation of surveillance technologies and augmented disciplinary actions (that is, termination of employment) were emphasized as a way of purging counterproductive activities and employees from the workplace. Management maintains control of the labor force and benefit costs and increases profitability by precluding the theft of time. Punch clocks, which are reminders of the balanced ordering of the working time, as well as automated attendance and time systems, have been explored as means of justifying time management through automation and computerization. Nonetheless, these systems have proven to be liable to certain loopholes. For instance, such systems only register the presence of employees in business premises, but do not account for what the employees do once inside the premises. For instance, such systems would not detect the wastage of time in the form of trifling, faking illnesses, making personal phone calls using company time, or sleeping on the job. Because of this, there is a need for legislation that makes the theft of time unlawful and actionable. The law constitutes an effective deterring factor in preventing individuals from engaging in illicit behavior.

Despite the advocates of increased workplace surveillance and enactment of legislation to preclude the theft of time by employees, the formulation of time theft as a criminal act that should be punishable is not without challenges. Limits exist regarding the amount of commitment that employers can demand from employees before their productivity and morale suffer because of the excessive time discipline. Not only has there been vehement opposition to the supposed ramifications of workplace laxity, but also a scrupulous acknowledgment of capitals’ repressive exploitation of time theft as a resounding denigration of employees who oppose managerial control over labor and production processes (Vance & Paik, 2015). What is considered thievery by the workforce could be considered a response by employees to the extant economic inequalities.

Regulation of Employee Time

With the emergence of capitalism, the manner in which work is organized became increasingly ordered by the discipline and rigors of time. The formulation and regulation of time must be discerned as a political economic course of action. This is apparent with the emergence of theft of time as part of the capitalist vocabulary, formulated largely by ideological assertions reified in business and industry press. Management theory has been utilized in articulating more noetic and scientific measures of controlling the productive capacity of knowledge in the workplaces. The corporate led and state sanctioned restructuring of labor to emphasize the demands for efficiency, productivity, and short-term capital accumulation, as well as how employees spend their time at work endure to be the challenge of management. Part of the process of instilling discipline in the workforce is accomplished by formulating the concept of thievery of time as an emerging variety of workplace deviance, almost completely outside economic or historical contexts. The stringent regulation of how employees utilize their time at the workplace corresponds with the growth of regimented and routinized labor processes within the capitalist economies.

The managerial practice of purging what it views as wasteful has been escalated. The management of time has become extremely punctilious. The demand on the workforce to be highly efficient and productive in the background of an aggressive global economy has occasioned an increase in the surveillance of labor. This has had negative implications on both the mental and physical well-being of employees. Advances in ICT (information and communication technology), particularly their capacity for surveillance, provides an opportunity for management to scrutinize and thereby maintain detailed control over labor processes. However, even with these advances, surveillance interventions have yet to accomplish the desired omnipresence. In addition, worker opposition to management practices continues to be on the increase and the coordination of work and the meticulous management of time are not proceeding unchallenged. In this regard, it is imperative to make enact legislation to make time theft actionable.

Conclusion

Tort laws seek to promote integrity and personal responsibilities that are done by individuals. Tort laws come in to offer remedies to individuals who may be subjected to harm by inconsiderate actions of other, as witnessed in the above scenarios. In the first scenario, Robert Courtney’s actions are sensitive and immoral since they hurt a lot of people and most probably ruined a lot of peoples’ lives. However, this is also the same concept that should be applied in the second scenario because time theft can also be viewed as irresponsible and it can cause a lot of harm if it is left unaddressed. The idea of time theft is not completely new. The rise of this concept as an emerging form of crime has been contextualized within organizational transforms that define capitalistic economies, that is, the emphasis on outsourced, decentralized and ever more competitive conditions of the labor market. Time theft continues to be maligned as a counterproductive activity that is costing businesses billions of dollars annually in lost revenue and business failures. This form of activity constitutes the greatest illegality and is a threat to the overall productivity of not only a company but of the economy, as well. While the current management approaches have often deployed sophisticated mechanisms, many of which largely rely on the advances of ICT, time theft and indolence of the labor force still appears. Surveillance remains an important mechanism of controlling and directing labor. However, the workplace is not a complete institution and workers can always find means of evading the various elements of technological gazes designed to coerce their conformity. In this regard, tort law provides the best deterrent against time theft by employees.

 

 

 

 

 

 

 

 

 

 

References

Baumeister, R. F., & Bushman, B. J. (2008). AND HUMAN NATURE.

Collins, D. (February 25, 2002). Drug-Diluting Pharmacist Gets 30 Years. Retrieved from: http://www.cbsnews.com/news/drug-diluting-pharmacist-gets-30-years/

Daft, R. L., & Marcic, D. (2006). Understanding management. Cengage Learning.

Ferrell, O. C., & Fraedrich, J. (2016). Business ethics: Ethical decision making & cases. Nelson Education.

Hunt, A. (1993). Explorations in law and society: Towards a constitutive theory of law. Other.

Krauss, M. I. (2012). Tort Law, Moral Accountability, and Efficiency: Reflections on the Current Crisis. Journal of markets & morality2(1).

Lewis, Pamela S. Management: Challenges for Tomorrow’s Leaders. Mason: Thomson/South-      Western, 2007.

Lunney, M., & Oliphant, K. (2013). Tort law: text and materials. Oxford University Press.

Rideout, V. (2003). Continentalizing Canadian telecommunications: The politics of regulatory reform. McGill-Queen’s Press-MQUP.

Vance, C. M., & Paik, Y. (2015). Managing a global workforce. Routledge.

Zabinski, Z., & Black, B. S. (2014). The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform. Northwestern Law & Econ Research Paper, (13-09).

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