Title: September 3, 2007
Q. My brother bought a “roach coach” business. He paid good money for 3 trucks, the routes and included a no-compete clause so that the company he bought the business from would not get back into the same business within 5 years from the sale. That business is now back in business, operating on the same routes that were sold to my brother only 2 years ago, and taking business away from my brother. What should he do?
A. I believe your brother should sue that company. Usually non-competition clauses are enforceable as long as they are not overly restrictive. For example, not permitting the operators of that company to re-open in the same area the business was previously operating simply protects your brother’s investment in purchasing the company. The enforcement of non-compete clauses in business-sale contracts depends upon the notion that part of what the buyer is paying for is the goodwill of the business (defined as the expectation of future public patronage) and by competing, the seller is unfairly undermining the value of the goodwill for which he was paid. Here your facts make it clear that part of what your brother bought and paid for was “the route”, and if the seller is going after his old customers on the route, that would violate a typical non-compete clause and could be the basis for a successful lawsuit.
Q. One of my co-workers took off a half day last week. He made it up this week. He was then told by our supervisor that because he failed to notify him of the switch, he would not only be docked for the time he missed, but would also not be credited for the made-up time. Is this legal?
A. The employer must live up to its agreement with the employees when a worker needs time off. The contract covering a particular pay or benefits provision does not necessarily have to be written down. However, if there is a written policy, a past practice, a general understanding, that alone may be deemed to be the contract between the parties as to that particular practice. Hence, a particular practice will generally not be against the law most of the time, but failure to honor a practice in an arbitrary or discriminatory manner is likely to be a breach of contract, a civil wrong addressable not through the Labor Commission but through a private lawsuit.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Showing posts with label Supervisor. Show all posts
Showing posts with label Supervisor. Show all posts
Tuesday, March 24, 2009
Thursday, March 12, 2009
Legal Eaze #37 Hepatitis from Restaurant, School Bus Accident
Title: December 7, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I heard that several people caught Hepatitis A from patronizing a local restaurant. A member of my family went there not long ago. I am very concerned for my family’s health. What is the restaurant’s liability for making people sick from contaminated food?
A. If getting Hepatitis A can be traced to contaminated food from this restaurant, the owner(s) of the restaurant will be liable for any damages sustained as a result of catching this dreadful disease. Infected individuals can unknowingly infect others two weeks prior to feeling ill themselves. So you are justified in being concerned. Damages the restaurant’s owners can be sued for include medical care, income loss, pain and suffering, mental anguish, loss of consortium, etc. Hepatitis A is a serious disease and kills approximately 100 people in this country every year. Tracing of the origins of the disease must be confirmed however before filing any lawsuits. So, you must be sure that the disease was contracted due to contaminated food or unsanitary conditions at this restaurant.
Q. My son rides on a school bus everyday. Because the bus driver has ill feelings towards my son, he must sit in the front row everyday. I was informed by him that because he is in the front row, he can see everything in front of the bus and what the driver is doing while driving the bus. The driver is constantly watching the rear of the bus through her back view mirror instead of watching where she is driving the bus. Not long ago, she almost hit a child who was right in front of the bus. I am fearful that this driver is going to cause an accident pretty soon while she has several children as passengers. What can be done about this?
A. First and foremost, I would let her supervisor know that her driving is dangerous. It is indeed the duty of a school bus driver to ensure that the kids in her care behave. But, her first duty is to ensure their safety. If supervision of the children becomes her primary focus, then she needs to have a driver who will focus on driving the bus. By notifying her supervisor, the school district will become aware of the dangers the children are facing while in this bus driver’s care. If an accident does occur, the school district will become liable through the “respondeat superior” theory which means that the employer becomes liable for damages incurred as a result of their employee’s negligence while she is working.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I heard that several people caught Hepatitis A from patronizing a local restaurant. A member of my family went there not long ago. I am very concerned for my family’s health. What is the restaurant’s liability for making people sick from contaminated food?
A. If getting Hepatitis A can be traced to contaminated food from this restaurant, the owner(s) of the restaurant will be liable for any damages sustained as a result of catching this dreadful disease. Infected individuals can unknowingly infect others two weeks prior to feeling ill themselves. So you are justified in being concerned. Damages the restaurant’s owners can be sued for include medical care, income loss, pain and suffering, mental anguish, loss of consortium, etc. Hepatitis A is a serious disease and kills approximately 100 people in this country every year. Tracing of the origins of the disease must be confirmed however before filing any lawsuits. So, you must be sure that the disease was contracted due to contaminated food or unsanitary conditions at this restaurant.
Q. My son rides on a school bus everyday. Because the bus driver has ill feelings towards my son, he must sit in the front row everyday. I was informed by him that because he is in the front row, he can see everything in front of the bus and what the driver is doing while driving the bus. The driver is constantly watching the rear of the bus through her back view mirror instead of watching where she is driving the bus. Not long ago, she almost hit a child who was right in front of the bus. I am fearful that this driver is going to cause an accident pretty soon while she has several children as passengers. What can be done about this?
A. First and foremost, I would let her supervisor know that her driving is dangerous. It is indeed the duty of a school bus driver to ensure that the kids in her care behave. But, her first duty is to ensure their safety. If supervision of the children becomes her primary focus, then she needs to have a driver who will focus on driving the bus. By notifying her supervisor, the school district will become aware of the dangers the children are facing while in this bus driver’s care. If an accident does occur, the school district will become liable through the “respondeat superior” theory which means that the employer becomes liable for damages incurred as a result of their employee’s negligence while she is working.
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