Introduction
The Federal Tort Claims Act, Title VI of the Legislative Reorganization Act of 1946, was approved by Congress in an attempt to alleviate the negative implications of the policy of sovereign immunity “when its employees are negligent within the scope of their employment.” (Federal Tort Claims Act, n.d.).
Government liability in tort cases
Furthermore, it was meant to eradicate the practice of persons introducing private relief bills for citizen who had been aggrieved owing to government neglect. In it, the government gave its general consent to be sued in civil wrong actions in federal court. It required a jury less federal district court judge to provide judgment in these cases under scenarios where the US government, if a private person, would be liable to the claimant for such damage, loss, injury or death in agreement with the law of the place where the act or inaction occurred. However, the onus of proving the facts vests with the plaintiff in a tort claim and it also contained exceptions to governmental liability. Under 28 U.S.C.A Section 2680, the following could be said to be exceptions to the concept of governmental liability. They are as follows:
Further, military action during war, monetary injuries caused by fiscal transactions of Finance and treasury departments, regulatory issues of the monetary system, e.g., collection of custom duties, etc., for claims emanating in a foreign country, and also in case of other assorted claims. Dalehite v. United States, (1953):
In Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the U.S. Supreme Court generally viewed the flexible function exception to include all situations involving the formulation or execution of plans that were drawn at a high level of government and that entailed application of judgment. In this case, Federal government workers in Texas were careless in packing and shipping explosive material, and their carelessness resulted in the death of 536 people. The Court verdicted that the workers were carrying out directives prepared by senior officials in Washington, D.C., who were applying their judgment. Thus, the optional function exemption applied and the government was protected from suit.
“The Court of Appeals for the Fifth Circuit reversed the trial court’s judgment in favor of petitioners. “ (Federal Tort Claims Act Case Compliments of Versus Law: 97 L. Ed, 1998).
Federal laws in the context of North Carolina
However, when viewed in the context of North Carolina, it may be said that there are certain issues that are expressly prohibited in contract clauses, and therefore, in such cases, there is need for appropriate rescissions, modifications or amendments to be made in order to make Federal laws amenable to State of North Caroline laws.
In the first place, holding the State liable for actions of persons who are not state agents, employees or servants. Next, it is seen that it is not possible to claim more than what is permissible under the Tort Claims Act, and therefore, the State of North Carolina is at liberty to reject the amount that is in excess of what is admissible under the Tort Claim Act. Again, with regard to financial matters, it is seen that the North Carolina State’s obligation is limited to that under its annual budget for an annual year, since all payments are fixed on per annum basis. Therefore, if any acceleration is claimed, it is well within the State of North Carolina’s powers to rescind such clauses, or to seek the intervention of the Attorney General to seek ways and means for appropriation of funds from the funds allotted to North Carolina state treasury funds.
Next, it is seen that applying the Federal laws in the context of North Carolina State, the Federal laws seeking to provide liabilities for actions other than negligence of State employees, their agents or servants. (N.C. Tort Claim Act: General Statute 143- 291, 2005).
In case where it is seen that such liability is not sustainable by State, it is well within powers of North Carolina to cancel such clauses or have them modified to suit state requirements.
Further, it is seen that any clause that restricts the liability of contractors for non-performance in the state of North Carolina is void, in that if any contractor has agreed to undertake any work, he is under obligation to perform the work, but later on disclaims performing, has different characteristics with inherent difficulties in non-performance. Therefore, any clause seeking to restrict liability on non-performance can be rescinded.
Another important aspect that applies to the State of North Carolina is the overriding powers vested with the Attorney General (AG) of the State. In cases where there are disputes prevailing, which require the intervention of the AG, his decisions shall remain binding and applicable on the State.
It is also seen that the State is at liberty to declare clauses that seek to allocate legal jurisdiction of contracts to States, other than North Carolina, to be void able, at the discretion of the AG. This law applies except in the case of transactions like non-consumer loans, or any actionable or arbitration contracts, which had been signed in the State of North Carolina but the legal jurisdiction of which was in a county outside the jurisdiction of the State of North Carolina. It is well within the powers of the AG to determine the outcome of such disputes, keeping in view the interests of the State.
In a decided case, the question arouse as to whether reduction in the time span in which action could be brought about for filing a legal claim or to bring a suit for breach of contract. It is seen that a period of less than 3 years for bringing legal action could be voided, otherwise if the breach caused incalculable injuries to aggrieved parties. In all other cases, such clause could be deleted as per the laws of the North Carolina.
The State of North Carolina cannot agree to any clauses that make arbitration, binding and mandatory, which would in effect, undermine the authority and suzerainty of Attorney General (AG). It is further seen that federal laws cannot seek to assign or transfer rights of parties to outside 3rd Party, without putting such party to same rights and obligations as would have been available to the original debtor. In case this is not possible, such a clause, if present, needs to be cancelled.
There are interalia, other clauses that need to be observed in dealing with matters of State of North Carolina Vis-a –Vis Federal laws. It could be seen in terms of the fact that any clauses seeking to restrain or prevent providers’ employees to seek employment elsewhere are void and unenforceable. Again, it is seen that providers are under obligation to disclose matters that need to be revealed, under law, and also the need to keep confidential matters that are private in nature. Revealing confidential matters and not disclosing legally disclosable maters constitute an offence under local laws in North Carolina.
Conclusion
It is seen that powers of Attorney General (AG) in North Carolina are dominant and need to be abided. In the context of the fact as per law, the payments are determined for one year only, and therefore any payments stretching beyond one fiscal year, needs to seek appropriations from the State of North Carolina of adequate means to cover up the purposes set forth in contract.
Thus it could be seen that the state of North Carolina has evolved its own set of laws derived from state policies and rulings of law courts. Etc. However, it also to be seen that the Federal statutes need to be in harmony with State laws in order to provide direction and thrust to all aspects of law in its executor functions.
Reference List
Federal Tort Claims Act Case Compliments of VersusLaw: 97 L. Ed. (1998). The Medical and Public Law Site. 49. 2008. Web.
Federal Tort Claims Act. (n.d.). The Lectric Law Library’s Legal Lexicon on Federal Tort Claims Act. 2008. Web.
N.C. Tort Claim Act: General Statute 143- 291. (2005). CTE Presentation. 2008. Web.
28 USC – US Code – Title 28: Judiciary and Judicial Procedure (2003) Vlex. Web.
Parent-Child Conflict Resolution: Communication Problem
Introduction
Conflict is considered the basic problematic type of interaction between the parents and their children. Family life is full of misunderstandings and moral struggle between two generations. The parent-child conflict is a global profound problem which is widely developed despite the culture or social group people live in. The reasons causing such conflict are closely connected with our cultural, moral and ethical inner development. Communication problem lies in the human psychological and metal development. The problem of the generation gap is considered to be one of the most complicated and contradictory. (Adele, n.d.).
Communication Problem
The psychological view upon the problem of the parent-child conflict covers many aspects explaining the nature of generations’ contradictions. The affection on the communication climate can be reached by means of messages interpreted as strategic, superior or evaluative. The communication problems between parents and their children are usually caused by different views on the same aspects of life. The overpowering of the actual words in the process of communication is caused by implications. This aspect of the problem contains the following background of the conflict:
- The implication of criticism is usually perceived as negative factor or intention in the communicative process;
- Things which are considered to be common for parents and children so they are to share them;
- Intimacy signal which may be perceived as intrusion.
Despite the grounds of the problem there are some certain solutions which can help parents and children to avoid strong and serious constant conflicts. Psychologists stick to the point that effects of the communication interactions are the background for possible conflict; thus, in the communicative act its participants are to transfer the negative and neutral remarks into the positive ones. So, questions can be easily replaced for statements and used as a way of laying a trap. It is important to understand these facts and try to avoid them. For example, usual predictions can be perceived as threats and be the beginning of the conflict situation. Quarrels are the frequent effects of the misunderstanding between mother and the daughter. The usage of non verbal language strengthens the development of the problem. The understanding of the same issues usually carries a different character for parents and their children that is why it is difficult to find a common language. (Dessislava, 2008).
The reasons of the Communication Problem
The relationships between the parents and their children are considered to be vital. According to Tannen, the remarks heard from other people are not hurting but for they are coming from your close people. The conflict has the ability to open the person; it shows the real nature of people and allows expressing your thoughts. One of the reasons for the conflicts is the balance of power in all families. The children are not treated equally and have certain limitations. People got used to build the atmosphere of friendliness or conflicts by themselves. The negative intentions expressed in the process of communication are considered to be the links in problematic situations. (Nichols, n.d.).
The Way the communication problem affects parent-child relationship
The behavior during the conflict changes rapidly. As Ellison stated, when both participants of the conflict take the defensive position, they can feel their role of victims in the particular situations. The conversations based on aggressiveness and initial negativity will compulsory lead to the conflict development. Global communication problem can lead to the breakage of any relationships especially when the character of the problem is rather serious. Partial or complete loss of relationships and contacts could be the main background for the beginning of the conflict situation.
Communication skills as the way of problem minimization
The usage of the appropriate communication skills is considered to be the key element in the problem minimization. Communication skills can help any person to transfer the atmosphere into the positive one. Thus, Ellison tried to explain that the improvement of the communication climate could be reached by means of non-defensive communication tools. The main task of the statements is to provide information rather than express negative intentions or critic. One of the main points of the problem minimization is regarded to be the ability of the participants to see and understand the opposite problem, though one is not agree and stands his ground. The awareness of the approval necessity by the close person is considered to be an important factor in the problem solution. Thus, children always wish to be approved by their parents and parents want to see the love and respect to themselves in respect. The negative reaction in the process of communication should be avoided and even changed into the positive one. (Winslow, 2006).
Conclusion
Thus, the analysis of the parent-children conflict managed to show that its background is hidden in people themselves. The main issue of the analysis is to teach how to understand and respect each other. The problem of the generation gap is a global problem of the whole humanity and only understanding this fact can help to overcome disputes and aquarelles in the families.
References
Adele, Faber & Elaine, Mazlish. Liberated Parents, Liberated Children: Your Guide to a Happier Family.
Michael P. Nichols. Stop Arguing with Your Kids: How to Win the Battle of Wills by Making Your Children Feel Heard.
Parent-child Conflict. Web.
Winslow, Emily & Gilliom Miles. Parent-Child Conflict and Neighborhood. Abnormal Psychology. 2006.
Dessislava, Marinova-Anguelova. Dynamics of Parent Child Relationships and Conflict. 2008.
Organizational Position In Marketing Plan
Introduction
Marketing Plan is the broad roadmap to bring the product or service of a firm to the market place. Market analysis precedes the making of the marketing plan. The market analysis provides information on the market size, growth characteristics, buying trends of consumers and trends for the future. (Doug Williams & Associates) Based on this analysis it is possible to evolve marketing strategies. Marketing strategies that transform the product or service to the needs of the target customers form the basis of marketing plans. Good market research has the ability to uncover the marketing ideas for development of new products or services that are not presently met and based on a good market research new marketing strategies could be evolved. A good strategic marketing plan should consist of clearly established goals. Goals provide the directions for the organization. Strategic marketing plan should encompass goals for shorter periods say one year and objectives for relatively longer periods of time, say three years. Goals must be realistic and attainable.
Marketing research will greatly aid the formulation of goals since through market research specific market information can be gathered that will enable the firm to identify the target market segment and the firm will also be able to position the product offering within the chosen target market. Thus the formulation of market strategies include the processes of:
- segmentation,
- target market selection,
- positioning of the product within the target market,
- value proposition to the target market.
Marketing Mix Decisions
Once the market strategies are evolved the next logical step is to take detailed tactical decisions on important aspects of marketing mix. The marketing mix decisions are usually made on all controllable parameters like specification of product development, designing, pricing, distribution, channel penetration, advertising, internet, public relations, tradeshows, use of sales representatives, telemarketing, and direct mailing etc. (NetMBA).
Allocation of Resources
The firm should analyze the financial and other resources needed to implement the marketing plan drawn. This is one of the important steps in the implementation of the total marketing plan. The amount of money a firm has to spend on a marketing program and the allocation of such financial resources is influenced by many factors. Some of these factors are the nature of products are being offered, specific short term and long term marketing goals the firm would like to accomplish, target market and nature of customers of the target market, the advertising media selected and the number of product lines or services that the firm would like to introduce.
Allocation of marketing resources has always been a complex decision since there are a number of media choices are available to the firm to depend on. In the present day dynamic business environment where multiple factors interact to influence the sales and profits of a business, it is not possible to consider the impact of marketing tools in isolation and decide on the allocation. Therefore the managers continue to adopt the traditional method of allocating the resources on simple heuristic basis of a certain percentage of sales.
Another method of allocating the resources is to follow a ‘bottom-up’ method in which the managers decide the advertising budget based on the desired level of brand awareness and the relevant cost of various media vehicles to accomplish this objective. For instance in the pharmaceutical industry a firm may decide on the number of physicians the firm would like to reach and the number of times they should be contacted. However the allocation of resources on theses bases depends on the strength of the competitors and their marketing budgets. Moreover allocation of marketing resourced needs to be done across countries, products, marketing mix elements, and across different advertising vehicles within a marketing mix. It is to be noted that each decision needs the consideration of some specific aspects. (Sunil Gupta and Thomas J. Steenburg, 2008).
Organizational Position
The position of the organization in the market is determined by various elements like the purpose for which the firm’s products are being used and the actions of competitors with respect to the target market. In the marketing realm, positioning is the technique by which the marketers strive to create an image or identity for a product, brand or organization. Positioning is the place a product or organization occupies in a given market as perceived by the target market. Positioning is something which creates a place for the product in the minds of the consumers. Product position is usually expressed relative to the position of the competing products or firms in the market. Positioning process involves a number of steps like identifying the competing products, identifying the attributes of the product that define the product space, determining the ‘share of mind’ in respect of each product and determining the current location of each product in the product space. It also involves the determination of the combination of attributes preferred by the target market consumers.
Positioning is the way how a target market for a product defines the product in relation to the competitors. (Determan) Al Ries and Jack Trout (1981) have explained the way positioning is used as a communication tool in a crowded market place so that the communication reaches the target customers. The authors point out that though the market positioning starts with the product, the concept of positioning is concerned more with positioning of the product in the minds of the customers. The positioning approach becomes important in the wake of the fact that the consumers are confused with a large number of advertising messages reaching them everyday. There has been a rapid increase in the advertising budgets of large corporations spent with a view to reach their products to the consumer. In the midst of this high volume of advertising the customer’s mind will react to accept only the communication that is consistent with the prior knowledge or experience. Since positioning is a powerful tool that allows a firm to create its image, it is important for the entrepreneurs to define his product or service in such a way that it can occupy the leadership position in the market.
The position of the product can be enhanced by including a Unique Selling Proposition (USP) in the advertising messages. USP clearly puts in the minds of the consumers the specific reason why the firm’s products should be used in preference to those of the competitors. The organizational position is greatly improved by including the USP in the advertising messages, as the USP clearly differentiated the firm’s business in the eyes of the existing as well as the potential customers and the USP also requires the organizational team to focus on delivering the promise embedded in the USP thus improving the internal organizational performance. (Better Business Idea).
References
Al Ries and Jack Trout (1981) ‘Positioning: The Battle of Your Mind’ McGraw Hill Professional Publication.
Better Business Idea ‘The Unique Selling Proposition’. 2008. Web.
Doug Williams & Associates ‘Marketing Plan’. 2008. Web.
Net MBA ‘The Marketing Process’. 2008. Web.
Sunil Gupta and Thomas J. Steenburg (2008) ‘Allocating Marketing Resources’. 2008.