quinta-feira, 22 de agosto de 2013

Nightclub owner is ordered to pay $ 100,000 to the estate of dancer who died after crash

Nightclub owner is ordered to pay $ 100,000 to the estate of dancer who died after crash

Dissatisfied with the judgment rendered by the Court of the 3rd Labour Court in Piracicaba, which dismissed the claims of employment relationship and moral damages, appealed the estate of the complainant, a young 25 year old who worked for nine months as a dancer and escort clients a well-known nightclub in Piracicaba. The feature of the estate defended the thesis that there was restriction of defense, making it impossible to prove that alcohol consumption was mandatory during the service, which constituted, according to the appeal, the defendant's fault in the accident.



The plaintiff died from a fall that occurred when drunk, tried to get into her room by climbing the window of the building through an adjoining room. The fall caused serious injuries to the young man, who remained for months with no movement from the neck down.



The estate said in its appeal that the examination of witnesses would prove that no consumption of drinks - which were paid by the customer and accounted for most of the profits claimed - entailed the payment of a fine by the workers. According to him, the absence of consumption entailed the discount $ 50 value to be received. On the other hand, if the daily intake quota was reached, the employee would be entitled to a bonus of the same amount.



The lower court held that there was no employment relationship because the activity performed by the claimant that is commonly known as a whore, exposing the body itself. Accordingly, it concluded that the task is carried out related to your personal choice of life, not being coerced physically or morally, and that there was no intention to hire legal subordination to, nor intended to be employed as an employee.



The claim for damages, also rejected the decision of 1st degree said that the fault for the accident was entirely the worker, since no one is bound to get drunk, and can not the author want to shift the blame for their state of claimed to drunkenness.



The rapporteur of the judgment of the 4th Chamber of the TRT-15, the judge called Ana Claudia Torres Vianna understood differently. According to the judgment, the evidence in the file away the autonomy and the absence of subordination and burden divulged by the defendant. Although claimed to have stated that the complainant was merely nightclub goer, said that due to time advanced when the closure of the establishment of the defendant, the plaintiff ended up sleeping on the premises, as well as fed-up, which for collegiate, denotes that she had to remain in place until its closure and therefore was not just a client, as the defendant would have us believe.



The college also ruled that sounds at least strange, and contrary to the rules of common experience, providing room and board to 'attending an establishment that is engaged in the adult entertainment, free of charge, without any benefit to the' supplier, and stressed that it was not clear for what reason the claimant, that, according to the defense, had no relationship with the defendant, he could use his room to sleep, feed and yet, 'she meet customers' garnered autonomously.



In the proceedings, the complainant received consisted approximately R $ 2,500 monthly and fulfilled day from Monday to Friday or Tuesday to Saturday from 21h to 3h, and who resided on the spot, in a back room of the club used also for intimate encounters with customers. The company, in turn, denied the relationship, saying not to interfere in relationships maintained by the claimant with customers, either in remuneration for services rendered, and still won the argument that the profession is not regulated whore, which in itself, would make void the contract if it had occurred.



The Board therefore concluded that the plaintiff played a dancer in activity of benefit claimed, frequent and subordination, for remuneration. In the opinion of the college, it appears reasonable to conclude that the operator of commercial activity with a view to profit, cede, free of charge, rooms and food to people who were mere 'attending site.



The college also stressed that what the woman does or does not do with her body is her exclusive right, won in only a few places in the world today and not without many struggles, but make use of the image and the physical presence of the woman to charge tickets and increase the consumption of alcoholic beverages in an establishment constitutes exploitation for commercial purposes. Accordingly, it concluded that no trade and there are people working with habituation, subordination, and personhood burden, this site is an employment relationship.



As for the illegality alleged by defendant in his defense, the judgment noted that even though the maid acted only as a companion of the defendant's customers, the solution would not be different, because the understanding of the Board, the non-recognition of the employment relationship in mind hateful enrichment cause of the employer, and certainly the reverse effect would: encourage the exploration of the human body and allow work in conditions analogous to slavery. The college also noted the patent subject to the minor child of the deceased claimant would not tell even with social security protection.



With this reasoning, the collegiate reformed the original trial, recognizing the employment relationship between the parties for the period 1 January 2008 to 14 October 2008. Also fixed monthly salary as the amount of R $ 2,500 in the initial stated, because it was for the defendant to join receipts proving payment or taste different values, which she did. Moreover, the annotation of CTPS determined, in accordance with Article 29 of the Labor Code, the function of a dancer.



As for the accident at work, the Board did not agree with the view taken by the defendant that the fact occurred by exclusive fault of the victim, who was intoxicated by his own free will, and acting with complete recklessness, attempted to move from room to room establishing the outside of the building, just holding hands on the windows, which caused the fall. The collegiate nodded, but with what was narrated by the estate of the plaintiff, that this, on October 14, 2008, around 2:15 AM, after working in the nightclub and ingesting large amounts of alcohol, went to his quarters, which were at the back of the place at the top. There he found that the door was locked, which is why we went to the next room, and by requesting the key to his' friend room, felt sick, and unable to rely on the wall, eventually came to the window . Rescued by the fire brigade, the plaintiff remained hospitalized until January 6, 2009. Because of the fall, suffered spinal trauma and lost all movement from the head down, becoming dependent on others to perform all activities of daily living.



The company denied any obligation to alcohol consumption, and the lack of protection in the work environment alleged by the defense's claims, said the window is where the claimant fell within the safety standards and that the accident occurred because only she climbed the railing and clung to the outside, trying to reach another window, which was about two feet away, supporting the body's own weight, since there was no footrest.



The expert appointed by the court heard the complainant in his own house, in the face of their full physical limitation, and concluded that the activities it carries on the services included nightclub dancer sensual and escort of men in the club environment, with which performed close programs, performing, on average, two programs with different clients intimate and sensual dance by night. Also had a goal, in addition to programs, the stimulus to the client to consume alcoholic beverages, usually distilled doses - two doses per customer - and thus also drank with customers.



For the expert, the worker said that was not very common to get drunk, but often to perform their functions, passing the limit. On the day of the accident, she said she was drunk because he had consumed a lot of alcohol, because the week before had been sick and had not reached the required shares.



In the company, the expert talked to other workers and registered, according to what was told, that the activity consume alcohol and, optionally, coconut water. As determined by the expertise, despite ingesting alcohol, they do not reach the state of drunkenness, as it is referred in 'business (close programs), yet in most cases are' altinhas.



At the hearing of instruction, it was reported the death of the claimant. The death certificate recorded that the death was natural, due to septic shock, urinary tract infection, neurogenic bladder, sequel to spinal trauma. There was no hearing of witnesses, dismissed by the court, which concluded the exclusive fault of the author by accident.



The judgment concluded, therefore, that the defendant took the risk of the occurrence of any accident on the premises, which was perfectly predictable given the working conditions to which they were subjected the dancers. And for lack of other evidence, sufficient reputed as the reports of other workers played in the expert report and provided spontaneously, without prior knowledge of the expertise would be held on that date, in order to prove that alcohol consumption was common practice for dancers in order to increase the amount spent by the clients that were also stimulated to afford doses consumed by them.



Given all this, it is clear that the defendant did not act with due care, failing to fulfill his duties as security and ensuring a healthy working environment, affirmed the judgment, which set the amount of the compensation for moral damages U.S. $ 100 000, in parallel with the salary of the applicant, the negligence of the company, the non compliance of safety standards, as well as its economic capacity. Also judged due since the date of the accident and even death, lost profits and monthly pension import fixed salary, including 13th salary, by way of damages. (Case 0006700-15.2009.5.15.0137)



Source: Regional Labor Court of the 15th Region

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