*1 READ, Petitioner, Dena Kristi
The SCOTT FETZER COMPANY d/b/a Kirby Company, Respondent.
No. 97-0707.
Supreme Court of Texas.
Argued on March
Decided Dec.
Rehearing 1Ó, Overruled June *2 Jacks, Shannon, Tommy James
Bob E. Austin, Mi- Richard Wright, L. Warren thoff, Houston, Wright, David Drew Jr., Austin, P. Powers, Richard Williams Houston, Petitioner. for Hogan, Kutik, Austin, A. Aspy, P. Clark David Decarli, Austin, Cleveland, OH, C. Robert Respondent. for delivered the Justice GONZALEZ Court, in which Chief opinion ENOCH, PHILLIPS, Justice Justice SPECTOR, BAKER, and Justice Justice joined. HANKINSON Justice raped by a door-to- A customer who was brought vacuum cleaner salesman door against manufacturer negligence action distributor, operated who and the Based on favor- independent contractor. jury the trial rendered findings, able court and for actual judgment plaintiff appeals The damages. court of punitive damages part affirmed actual and rendered the judgment reversed damages award. 945 S.W.2d punitive a com- question presented The whether products that markets and sells its pany contractor distribu- through independent in- by requiring and exercises control tors sales, owes home demonstration reasonably act exercise duty to company that control. We hold duty. Accordingly, we does owe such a appeals’ judgment. affirm the court of I Facts Company The Scott Fetzer d/b/a (“Kirby”) manufactures Kirby Company products. cleaners and related vacuum indepen- products only These are sold governed by are distributors who dent dis- agreement. Each uniform distributor a sales to establish tributor by recruiting prospective door-to- force for the called “dealers” salespeople door demonstration, exclusive in-home installa- cruited Mickey Carter to be one of his tion, sale, and Kirby Systems. service of dealers. Carter’s relationship with the Specifically, regarding noncommercial Company of an general sales to the public, the Kirby “Dis- subject contractor “Kirby to the Indepen- tributor Agreement” provides: dent Dealer Agreement,” which required *3 him, also, to Kirby systems sell to consum-
3. Exclusively Consumer End-User er through end-users in-home demonstra- Sales. ... Kirby Systems pur- [A]ll tions. by chased Distributor hereunder are purchased solely and exclusively for re- applying In employment, for Carter list- person sale in demonstration to con- ed three references and prior places three sumer pursuant end-users [Kirby’s] checked, of employment. Had Sena he
marketing system, [Kirby] unless other- would have found that women at Carter’s wise expressly authorizes writing. previous places employment of had com- Distributor agrees further to use his plained of sexually Carter’s inappropriate best efforts to conduct in person behavior. Sena also would have found that demonstration in the home of the con- Carter had been arrested and received sumer énd-user. adjudication deferred on a charge of inde- child,
cency with a and that one of the A violation of the “Exclusively Consum- previous employer’s records indicated that er provision End-User Sales” likely will Carter had been fired because of that inci- [Kirby] result in terminating Agree- Further, dent. Sena would have found ment ... taking any other action and/or that these records also contained witness which it appropriate believes under the statements, confession, Carter’s guilty circumstances. plea, and the charging indictment him with the offense. Sena did check. Further, regarding dealers, the in-home the “Kirby Independent Agree- Dealer hired, Not long being after Carter reads, ment” in pertinent part, as follows: scheduled an appointment with Kristi fully 3. Dealer understands that in or- Read for a demonstration. Before that to protect
der and maintain The Kirby scheduled appointment, went Carter name, Company’s reputation trade and Read’s home and met with her for several competitiveness the marketplace, Kir- hours. He also brought doughnuts one by Systems exclusively must be sold to morning, and then play- followed Read to a consumer end-users in-home demon- ground, spoke where he with her some stration. played more and with daughter. her That afternoon, 4. Dealer agrees certifies and Carter returned any to Read’s home, Kirby System consigned where he Dealer will assaulted her. only be sold to consumer end-users after Read and her husband Kirby, sued personal demonstration which will be Sena, negligence gross and Carter for conducted in the home of the consumer negligence. against The claims Carter end-user. were nonsuited before trial. The trial Additionally, Kirby enforces its contractual court submitted the jury case to the with a requirements through yearly reviews dur- broad form negligence question. jury The ing which supervisors divisional verify that found the Company Sena and Read each complying distributors are with the these percent ten negligent, Kirby eighty requirements as well as others percent negligent. jury The also found agreements. Kirby grossly negligent. trial court Sena,
In
Leonard
a Kirby
judgment
distribu-
rendered
against Kirby for
$160,000
tor and owner of
Kirby Company
$800,000
in actual
damages and
(the
San Antonio
Company”),
“Sena
punitive damages.
re-
only through
actual
in-home demonstra-
appeals
The court of
affirmed the
cleaners
tion,
control of
damage award. The court held that
has retained
precautions
had a
to take reasonable
of the distributor’s work.
portion
due to the
this retained con-
prevent
assault
must therefore exercise
a person
reasonably.
risk
when
peculiar
involved
trol
crime, violence,
or
devi
history
sexual
rea-
must act
concluding
conducts in-home sales. 945 S.W.2d
ancy
less
no more and no
sonably,
require
we
at 868. The court also held that because
general
of other
contrac-
than is
demonstrations,
Kirby required in-home
Redinger,
in similar situations. See
tors
control
company
exercised sufficient
recognized
at 418. We
products
the sale
to end-users
over
liability
general
contractor
direct
justify imposing
of reasonable
*4
it
reasonably exercise the control
failure to
per
selecting
persons
care in
the
who
independent
over an
contractor
retained
Finally,
the
formed
demonstrations.
Id.
the Re-
adopted Section 414 of
when we
punitive
court of
reversed the
appeals
the
(2d)
its
Through
Torts.
Id.
statement
of
award,
damage
holding that
was le
there
Sena, Kirby
control
contract with
retains
the
gally insufficient evidence to meet
by requiring
of the work
specific
of
details
870;
(citing
Id. at
Moñel
standard.
“in-home”
of its vacuum cleaners.
the
sales
Moriel,
Transportation Ins. Co. v.
879
argues
duty
that it owes no
be-
Kirby
(Tex.1994)).
10
the
S.W.2d
We affirm
successfully
itself
cause it has
divorced
appeals'
of
judgment.
court
Kirby
independent
from the
dealers.
that
no
with the
*5
case, all companies or individuals that em-
Council,
Spread
289-90;
926
at
S.W.2d
ploy independent contractors will be sub- Phillips,
contrast,
801 S.W.2d at
By
ject to the same duty. As we noted earli-
today’s holding
premised
is
duty
the
er, Kirby
claim
misunderstands the
emanating from Kirby’s retained control
is making. Read merely asserts that Kir-
over the details of the work.
duty
This
by, having retained control over vacuum
solely
control,
derives
from the retained
by
cleaner sales
requiring in-home demon- not from any balancing analysis. See Re-
strations,
duty
has a
to exercise its control
dinger,
737 cause, review, requires foreseeability sufficiency proximate our own factual conduct ordinary intelligence of that a of may person we ensure that courts danger created anticipated the legal stan- should have proper adhere appeals Doe, 907 act or by negligent v. omission. Corp. of review. See dard Aircraft Jaffe (Tex.1993) in the con- Carr, 27, Foreseeability (stating 29 S.W.2d at 478. 867 S.W.2d injury asks an jurisdic- text of causation whether although this has Court contemplated sufficiency might reasonably evi- been to determine factual of tion Id. dence, the defendant’s conduct. may whether inter- because of we determine simply Foreseeability permit does properly courts follow appellate mediate standards). retrospect and theoriz- viewing the facts legal Because the applicable extraordinary sequence of events proper ing on the stan- appeals court of relied sufficiency analysis, conduct caused dard for its factual which the defendant’s Rather, forsee- injury. question of sufficiency argument factual Id. Kirby’s based inquiry ability practical “involves merit. human experience applied on ‘common Regarding legal sufficiency of ” of (quoting City conduct.’ Id. Gladewa evidence, we determine if more must (Tex. Pike, v. ter supports than scintilla evidence 1987)); also, City e.g., Travis v. see finding' proximate affirmative jury’s (Tex.1992). Mesquite, Hornsby, Leitch cause. See S.W.2d (Tex.1996). 114, 118 Proximate cause con home predator into a Sending a sexual of two elements: cause-in-fact and sists those risk of harm to poses foreseeable 118; foreseeability. Boys Id. at Doe v. dealers, in the home. Dallas, Inc., 907 Clubs Greater demonstration, access to gain do in-house
472, 477 therefore must We A of the name. that home virtue *6 the examine record to determine whether intelligence an- ordinary of should person legally sup is sufficient evidence there to would ticipate that an unsuitable dealer finding an affirmative on each of port Doe, a of harm. See 907 S.W.2d pose risk elements. these more than a at 478. hold that there is We harm scintilla that the risk of of evidence The of proxi cause-in-fact element Kirby’s require- created in-home sales is there is mate cause met when some ment was foreseeable. “ that evidence the defendant’s ‘act or was a factor in bring omission substantial Damages Punitive Y injury” which harm
ing about not Id. (quoting would have occurred.” appeals that there court of held Assocs., Prudential Ins. v.Co. Jefferson legally support evidence to insufficient (Tex.1995)). Ltd., 156, 161 at finding. gross negligence Here, although that he had Sena testified For reasons stated in the court Carter, background done a check on he not agree. we appeals’ opinion, of if directed him to. have had would that Sena would have There was evidence if he past problems about Carter’s
learned
background
a
check. Sena
performed
had
reasons,
affirm
For the above
we
he
not have
Car
that would
hired
testified
judgment.
court of appeals’
if he had
a
dealer
learned
ter as
that
history. We conclude
about Carter’s
dissenting
filed a
Justice HECHT
sup
evidence
legally
sufficient
to
there
joined.
Justice
opinion, in which
OWEN
finding.
a cause-in-fact
port
dissenting
filed
proximate
of
Justice ABBOTT
The other element
joined.
opinion,
of
in which Justice OWEN
foreseeability.
In the context
cause is
HECHT, joined by
Justice
must
seriously
Justice
not
affect the wide
range
OWEN, dissenting.
direct sales and service
from
businesses
Tupperware to television cable companies
To
just
achieve what it considers to be a
contractors,
that
employ independent
result in
Kirby Compa-
this case—that the
something
absolutely
has
de-
Court
ny pay for a sexual assault committed by
sire to do.
its
contractor’s independent
contractor —the
faces
Court
three obsta-
The Court’s solution is to limit
deci-
its
First,
cles.
must somehow
be found sion, as
possible
beyond
much as
and well
to
controlled
distributors’ opera-
its
allow,
what general principles will
com-
assault,
in way
tions
to the
led
even panies
require
products
their
to be
though it
contracted
them that
sold
A
exclusively in customers’ homes.
would “exercise
over
no control”
their se-
only
company
products
allows its
Second,
lection of
dealers.
must have
unaffected,
be sold in homes is
even if the
been foreseeable to
that a distribu-
Today’s
risk to customers is the same.
might
tor
a dealer applicant’s
check
rule”,
“vacuum
carefully
cleaner
tailored
background
if not
to do so and
trimmed,
apply
all
cases exact-
might
hire a
mistakenly
person with a
one,
ly like this
which
appear
there
history of sexual
might
misconduct who
cases,
be none.
In all other
the “taxicab
problem
assault
customer. The
here is
apply,
sym-
rule” continues to
absent other
business,
over
eighty years
doing
pathetic
Employing
circumstances.
only
has had
one other dealer who
chancery jurisdiction, the Court
achieves
customer,
sexually assaulted a
even though
good result in this one
ad-
case without
12,000
currently some
Kirby dealers make
versely
industry,
the direct sales
affecting
1.5 million in-home demonstrations annual-
employment
independent contrac-
ly. While a
bemay
improbable
risk
tors, or,
all.
hoped, anyone
it is
else at
foreseeable,
be
just eight years ago
still
is,
Today’s
decision
borrow Justice Rob-
Transportation
Houston
Greater
Co. v.
tick-
metaphor,
erts’
“a restricted railroad
Phillips,1
opinion
also authored
Jus-
et, good
day
only.”2
for this
and train
held
the Court
as matter
GoNzalez,
tice
lawof
that a Houston taxicab company
parties,
Both
other hand and to
1,000
whose drivers had had about
acci-
credit,
their
insist
this case is
*7
annually
twenty years
dents
it
during
unique and that it should be decided based
had done
could not reasonably
business
legal
on a neutral
application
settled
that if
foresee
it did not forbid its drivers
view,
I
and in
principles.
agree,
my
these
so,
carrying guns,
they
from
would do
principles
a different decision. Ac-
require
illegally, and would shoot other
in
drivers
I
cordingly,
dissent.
respectfully
following
altercations
accidents. Phillips
question
today’s
poses
why
to
Court:
I
the risk that a
cleaner
is
vacuum
salesman
injury:
Kristi
a
Read suffered
terrible
turn
predator
will
out to be a
more
sexual
living
in
she was
assaulted
than
risk of
foreseeable
cab driver
Carter,
by Mickey
room of her
who
rage”
at
a
home
“road
when it is
least
thousand
ostensibly
Kirby
to
a
there
demonstrate
likely
times more
that Yellow Cab driver
cleaners,
vacuum
which he sold.
will shoot someone in an accident in
Carter
Hous-
to
than it
vacuum
was an
contractor
independent
ton
a
cleaner
selected
Sena, a
will
be a
anywhere
salesman
assault a customer
“dealer”
Leonard
Third,
an
world?
the result
this case
who
“distributor”
was himself
523,
dissenting)
801 S.W.2d
(quoted
1.
526-527
in Dow Chem. Co. v. Alfa-
ro,
674,
(Tex.1990) (Phillips,
786
709
649, 669,
Allwright,
Smith v.
U.S.
64
321
C.J., dissenting)).
757,
(1944) (Roberts, J.,
S.Ct.
739
independent
indepen-
contractor. The
Com-
One who entrusts work to an
contractor,
dent
but who retains the con-
pany employed Sena.
addition to the
work,
subject
any part
trol of
of the
penalties already
criminal
imposed
Car-
harm
liability
physical
for
to others for
ter,
he is liable Read under the civil law
a
safety
employer
whose
owes
her
But
damages.
sought
Read has
care,
to exercise reasonable
which is
compensation
from Kirby.
instead
caused
his failure to exercise his con-
perhaps goes
It
saying
that a
trol
reasonable care.5
determination
whether
is liable for
responsi-
The basic notion of individual
injury
guided
by goal
Read’s
must be
not
rule,
bility also dictates that
‘a
“[a]s
affording
Read compensation, as desir-
person
legal duty
protect
has no
anoth-
be,
may
able as that
by generally
per-
er from the criminal acts of a third
applied principles
”6
legal responsibility,
Nevertheless,
person
son.’
should not
among
basic
which is that
individuals
criminal
may
foster
conduct and thus
be
should
responsible
be
for their own actions
negligently creating
hable for
a situation
and should not be liable for others’ inde-
opportunity
that affords another an
pendent misconduct. From this funda-
commit
“
if
person
a crime
at the time the
mental
precept
person
follows that a
‘realized or should have realized the like-
employs
independent
who
contractor
might
lihood that such a situation
creat-
be
must use reasonable care to select some-
ed,
person might
and that a third
avail
competent
one
to do the work assigned3—
opportunity
himself of the
to commit such
”7
employer’s
decision is the
is not
person may
a ... crime.’
A
be hable
—but
ordinarily
hable for the
con-
even if the situation he
creates does
tractor’s wrongful injury to another in the
probable,
make criminal conduct
but the
If, however,
course of the
assigned
frequency
work.4
of such conduct is
factor to be
determining
considered in
the contractor is
whether was
truly independent,
foreseeable.8
but rather
the employer retains control
aspect
over some
of the contractor’s activi-
rules,
No one
questions
under these
ties, then
employer may
be liable
fading
is liable
Read for
to use
certain circumstances for its exercise of
selecting
reasonable care
Carter as
that control—its own conduct.
We
dealer,
competent
jury
found.
adopted the statement of this “retained
form
apphcation
Sena’s
Carter to
(Sec-
control” rule from the
references,
Restatement
hst employment
which Carter
ond)
did,
Torts as
inquired
follows:
apphcant
whether the
Roberts,
Inc.,
415,
3. Moore v.
Redinger
Living,
238-239
ref’d).
(Tex.Civ.App.
(Tex.1985)
writ
(quoting
(Second)
Restatement
— Texarkana
King
Corp.,
See
v. Associates Commercial
(1965)).
§
of Torts
*8
209,
1987,
(Tex.App.
S.W.2d
213
— Texarkana
denied)
(citing
writ
Jones v. Southwestern
Partners,
Cain,
Apts.,
6. Timberwalk
Inc. v.
972
455,
(Tex.
Newspapers Corp., 694 S.W.2d
458
749,
Harris,
(Tex.1998);
S.W.2d
756
Walker v.
1985, writ));
App.
no
Ross v. Texas
— Amarillo
375,
(Tex.1996); Centeq
924
377
S.W.2d
Real-
206,
(Tex.
Partnership,
One
796 S.W.2d
216
195,
(Tex.
ty,
Siegler,
Inc. v.
899 S.W.2d
197
1990),
denied,
App.
writ
806 S.W.2d
— Dallas
Old,
1995);
Management Co. v.
946
Lefmark
(Tex.1991)
curiam).
(per
222
also Re-
See
52,
(Tex.1997).
S.W.2d
53
See also
Restate-
(1965).
§
(Second)
411
statement
of Torts
(1965).
§
(Second)
315
ment
of Torts
Quinn,
17,
Corp.
v.
Exxon
726 S.W.2d
19
Co.,
Property Management
7. Nixon v. Mr.
690
Inc.,
(Tex.1987); Redinger
Living,
689
546,
(Tex.1985) (quoting
S.W.2d
550
Restate-
415,
(Tex.1985);
418
Abalos v. Oil
(1965)).
§
(Second)
448
ment
of Torts
Co.,
(Tex. 1976);
Dev.
631
States, Inc.,
Woodard v. Southwest
Apts.,
8. See
741 onstrations, fundamentally it nature contractually requires altering them without Kirby’s Kirby to do so. While in-home demon- of About 700 distribu- its business. 12,000 of requirement stration is some exercise dealers recruited employ tors some distributors, not, 50,000 control over its it as I annual applicants. from more than explain, distributors, will endeavor to the kind of con- Kirby’s who are like Sena in- contractors, trol over the details of its distributors’ select the dealers. dependent operations Kirby that should make liable plainly Kirby’s provid- contract for their leaving dealer selections while Kirby ed that “shall exercise no control of employers other contrac- ... Kirby over the selection of Dealers”. responsibility tors free of for similar em- selecting had to do with Carter as nothing ployment especially decisions. This is Practically contractually, a dealer. and concedes, true when Read and the Court entirely responsibility. that was Sena’s tacitly recognizes, Kirby could however, the Court argues, practically monitor or exercise otherwise concludes that should have exer- any meaningful control over dealer selec- cised some control over dealer selection Furthermore, tion. suggests evidence products because it to be sold Kirby’s requirement in-home sales through in-home demonstrations. This re- significantly has increased the risk of sex- quirement general is too constitute customers, ual assaults on its nor has the liability purposes. retention of control for attempted why Court even explain For an for an employer be liable inde- foreseeable, law, as a matter of that door- actions, pendent employer contractor’s to-door salesmen will assault merely must have retained not a “general unforeseeable, again their customers but right operations” of control over but con- law, as a matter of that armed cab driv- trol “‘the details of the work to be ers will assault other drivers in an acci- performed’ ”.10 An independent contractor principled dent. Without a basis for dis- independent only ceases to be when and to Kirby’s others, tinguishing operation from employer the extent that his assumes con- the Court’s decision amounts to no more trol for the details of the work. than an order Kirby pay Read for merely must employer control her damages. sought accomplished, the end to be also the means and details of its accom-
II plishment Examples as well. of the apply To the “retained control” rule to type normally of control exercised us, the case questions before three must employer include when and where to first, be answered: did retain con- work, begin stop regularity trol of Sena’s work responsible so to be hours, par- amount of time spent second, for his dealers’ torts? did work, aspects ticular of the the tools and owe Read a to exercise reasonable work, appliances perform used to prevent injured care to her from being or manner physical and the method third, criminal conduct? and Carter’s accomplishing the end result.11 injury by Kirby’s Read’s caused failure to exercise its retained control with reason- exercised no such control over its able care? I address each in turn. to dealer selec- respect distributors. With tion, contractually any right eschewed
A
Kirby’s
require-
such control.
contractual
itself,
products
through
does not select dealers
and ment that its
be
in-
sold
practical
merely
as a
matter it
do
home demonstrations
defined the
could not
so
Tidwell,
Co.,
Coip.
Thompson
10. Exxon
v.
v. Travelers Indem.
(Tex.1993).
Quinn,
1990) (citations omitted).
Corp.
(Tex.
See also Exxon
S.W.2d 277
*10
assaulting
only
her
if it real-
to its
from
assigned
nature of the work
distribu-
not control how its distrib-
the likelihood
Kirby
tors.
did
ized or should
realized
that work.
was
utors went about
in which
that
it had created a situation
to choose the basic distribution
entitled
tragedy might
occur.14
Court
such
products
thereby
system for its
that in-house sales create
simply assumes
liability
manner in which
incurring
for the
an increased risk of sexual assault.
carried out the details of
its distributors
Transportation
Houston
Co.
Greater
the work.
rejected
argument
Phillips15
we
indepen-
An
not liable for an.
employer is
Company
that
Yellow
Houston
Cab
merely
misconduct
be-
dent contractor’s
likely
a cab
should have known that was
of risk inherent
employer
cause the
knows
with him
might carry
handgun
driver
assigned
Spread
in the
work.
In Golden
an altercation with
driving, get into
while
Council, Inc. v. Akins12 this Court held
driver,
him.
ex-
another
and shoot
We
of America had no
Scouts
Boy_
plained:
troop
monitor its local councils’selection of
leaders,13
and its coun-
though
even
BSA
that Yellow Cab
The record shows
troop
cils
knew that
leaders were
well
City
in the
of Hous-
operating
had been
boys
placed
position
in a
abuse
and, in
twenty years
any
nearly
ton for
minimize the risk
charge
their
and tried to
in approximate-
involved
given year,
a list of
believed to
by maintaining
persons
During
accidents.
ly 1000 traffic
positions.
be undesirable for those
BSA
prior
one
incident
only
there was
period
not,
course,
require its
contractually
did
and the
weapon
of a
involving the use
troop
lead-
local councils to mandate
in that case was exonerated
driver
scouts,
actually
boy
but it
ers
interact with
that as a
We hold
any wrongdoing....
so;
do
had no need to do
one cannot
facts,
law,
these
matter of
under
troop
meeting
of a
leader without
job
duty to warn its
company
the cab
had no
for the
boys.
responsible
BSA was not
carry guns.16
cab drivers not to
merely
troop
of an abusive
leader
selection
for over
has conducted its business
up
organization
because it set
long
than four times as
eighty years,
allowed that risk
exist.
more
in Houston.
Company
the Yellow Cab
as
I
reason for
principled
cannot discern
12,000
million
about 1.5
dealers make
Its
any responsibility for
excusing BSA from
1,500
annually, or
in-home demonstrations
by persons
selected
sexual assaults
in-
of traffic accidents
times the number
councils and not ex-
independent volunteer
in Houston.
Yellow cabs
volving
responsibility
from the same
cusing
Company in Houston
and the Yellow Cab
indepen-
independent contractors’
for its
incidents of
number of
have had the same
organi-
Each created an
dent contractors.
Kirby, one
two. For
criminal conduct:
in-
of misconduct
zation which the risk
1983,17
in North Dakota
no
imposed
hered. The Court
assaulted Read.
other in 1993when Carter
BSA,
on Kir-
imposed
and none should be
law,
how,
it is
a matter of
I fail to see
by.
will shoot
unforeseeable that a cab driver
B
a Kir-
another driver but foreseeable
sexually, as-
noted,
cleaner dealer will
vacuum
already
Kirby owed Read
As
way
I
to recon-
a dealer
sault a customer.
see
prevent
reasonable care to
duty of
(Tex.
1996).
Id. at 526-527.
12. 926
Id. at 290.
Co.,
N.W.2d 229
17. McLean v.
(N.D.1992).
7, supra.
14. See note
15.
tile the in this dealer case with distributors to cheek says not in- Phillips Court did assault was a fore- backgrounds, sexual control, volve an issue of retained and that consequence. seeable true, it perfectly is did involve an issue just foreseeability, present as the case C does. question is whether Read’s The third generally, More there is no evidence by Kirby’s failure to injury was caused this record that door-to-door salesmen are exercise its retained control with reason- likely more assault their cus- that all argues repeatedly able care. Read any tomers than other Di- salesmen. The differently should have done was Association, curiae, Selling rect as amicus its distributors contractually obligate showing many cites statistics custom- conduct criminal checks of all background sellers, with acquainted ers'are their direct potential dealers. Read does not even personally through either or referrals. contend that should monitor or en- are surprising, Such statistics since obligation. force the Read’s counsel was might one well surmise that most custom- quite subject argu- at oral clear on the admit, ers would be far more reluctant to ment: strangers into their they homes than argument COURT: So the sole that is approach strangers
would be to in the being only thing made here is the department sales of a But store. we need done, Kirby should have that it did not go outside the point record. The do, part agreement was of its nothing that there is all in at the evidence distributor, its the distributors would do before us to show whether the risk of background checks? sexual organizations assaults home sales greater than in COUNSEL: That’s correct. That other sales contexts. required by that be the distributor. A party’s third criminal conduct need you requir- ... But are not probable not be COURT: person may before a have protect it, ing any background do others from but the checks on the infrequency salespeople? of such conduct is a factor that must be considered in determining wheth- COUNSEL: That’s correct. That’s er it was ago, foreseeable. Several months correct. That would be too burdensome Partners, in Timberwalk Apartments, Inc. and that would be unreasonable.... Cam,18 we held in a related context that determining “[i]n whether the occurrence
of certain criminal conduct on landown- And they [Kirby] COURT: so ah foreseen, property
er’s should have been needed to do was add one sentence to courts should consider crimi- any whether that contract? nal previously conduct occurred on or near occurred, property, recently how they COUNSEL: That’s all needed to occurred, how often how similar the They copy type do. could xerox the conduct to the proper- was conduct on the it at the bottom.
ty, publicity and what given the occur-
rences to indicate that the landowner knew or should have known about them.”19 ... they [Kirby] COURT: Don’t is, course,
Two
trag-
sexual assaults
two
obligation
up?
follow
many.
edies too
But the
evidence
record does not show
should
suggestion
COUNSEL: There is no
require
have realized that if it did not
North
Supreme
[the
either
Dakota
18.
Court’s Moreover, law, Kirby’s under settled dis- appeals’ opinion or the court of imposed by duty already duty tributors had a any continuing that there was case] in selecting law to reasonable care argue. to And we would not so use monitor. requirement A contractual dealers.21 nothing. would add flaws in Read’s Recognizing plain they [Kirby] ... COURT: [Wouldn’t it, does not endorse position, the Court obligation to monitor and fol- some duty “act writing only that had a to are up low to insure that their dealers But reasonably” that means.22 —whatever doing background checks? duty impose if intended to the Court duty I think their would COUNSEL: for, argued surely Read greater than they I could very be narrow. think duty only say so. If has a would said, part that “As a write a contract make require its distributors to back- distributor, are re- agreement, you, our but to ground applicants checks of dealer check. quired background to conduct a requirement, monitor and enforce background conduct Failure to Kirby has met its suggestion its then check, like the failure to conduct warnings its legal obligations by putting way appropriate in the we deem sales grossly manuals23 is training distributor misleading. you But would have to mon- COURT: a failure. itor to know that there was Ill my question. That’s is, believe, I aberration- Today’s decision I think there’s a COUNSEL: don’t much concern. al and therefore not of monitor, duty my is answer.... prevent much as it can Court tries as the multitude of impacting from
decision
A decision
Kirby’s.
businesses similar
only duty
...
say
consequen-
You
not be
may
COURT:
at a
aimed
result
was,
decision-making
in the contract
put
requirement
tial,
result-directed
but
duty
had a
to do a
from
departs
that the distributor
more
A Court
serious.
background
may
check.
do so
in one case
principles
settled
Roberts’
To return to Justice
another.
do the check.
actually
To
COUNSEL:
decision should
analogy, no
court
appellate
Yes, Your Honor.
ticket,
railroad
turn
“a restricted
out to be
it did not—that
And
COURT:
only”;
train
certain-
good
day
for this
duty
to monitor
Kirby did not—have
designed
be
ly, no decision should
enforcement,
if
to enforce it
that for
such restrictions.
breach came to its
knowledge of the
law,
attention.
can obtain com-
settled
Under
injury
for her
from Carter
pensation
That’s correct.
COUNSEL:
reaches
only. Because the Court
sen-
Kirby’s only duty
If
was to add one
result,
respectfully
I
dissent.
contrary
agreements requir-
tence to its distributor
po-
backgrounds
to check the
ing them
ABBOTT,
joined
Justice
Justice
dealers,
conducting any
tential
OWEN, dissenting.
monitoring the distributors
checks itself or
control over where
I
how
retained
fail to see
operations
compliance,
who
not over
performed,
work was to be
ineffectual a
could
the breach of so
(N.D.l 992).
22. Ante at
20.
where the dealer works. As a
requisite relation between the control re- alleged injury missing.
tained and the *13 contrary,
Because the Court holds to the I
dissent. I agree analysis with the Court’s of Re- GIBBS, Petitioner, Naomi Inc., 415,
dinger Living, v. (Tex.1985), contractor, that “a general like v. Kirby, has a reasonably exercise JACKSON, Respondent. Shannon
the control it retains over the independent No. 97-0961. contractor’s work.” 990 at 735. I S.W.2d agree synopsis also with the Court’s Supreme Court of Texas. Tidwell, 19, Exxon Corp. 22, Argued Oct. 1998. (Tex.1993), that in determining whether a case, exists a retained-control April Decided “focus is on whether retained control [the] Rehearing Overruled June was specifically alleged related to [the] injury.” 990 disagree S.W.2d at 736. I application
with the Court’s of this law to
the relevant facts of this case. noted, Kirby’s
As Agree- Distributor
ment Independent and Agreement Dealer
collectively require dealers to sell vacuum
cleaners in the potential homes of custom-
ers. Kirby’s contract with its distributors
also provides “shall exercise no
control over the selection of ... Dealers.
The full responsibility cost and for recruit-
ing, hiring, firing, terminating and com-
pensating independent contractors
employees of shall Distributor be borne
Distributor.”
Ms. injury Read claims that her is relat-
ed to the selection of Carter as a dealer background
without a injury check. This specifically related to the control that Kirby abrogated over the selec- —control essence,
tion of dealers. the Court Kirby’s Agreement
rewrites Distributor Independent Agreement Dealer re-
quire Kirby to assume control over dealer injury
selection. Because the is not relat- Kirby,
ed to the control retained
Tidwell test is not met and owed no notes has contract Duty: Right II of Control dealers, only More- with the distributors. Kir pleadings allege Read’s that over, Kirby’s contract with its distributors “duty by precau has a to take reasonable “[Kirby] that: shall exercise provides tions minimize the risk its customers over control the selection Distributor’s coming deal Kirby from into contact with respon- The full and ... Dealers.... cost psychiatric ers who criminal and/or sibility recruiting, hiring, firing, termi- Kirby records.” and some the amici con- nating compensating independent and curiae and pleadings characterize Read’s shall employees tractors and of Distributor arguments impose as seeking to vicarious by be borne Distributor.” liability on a the general contractor for that Kirby heavily also on the fact relies an independent torts of contractor or as inde- stipulated that Carter was an rela seeking establish master-servant pro- pendent stipulation contractor. tionship Kirby between and Carter. How independent that contractor “[a]n vided ever, we position understand Read’s to be who, independent of an person pursuit Kirby negligent through that its own business, specific undertakes to do work creating marketing conduct of an in-home person, using his means for another own system adequate without safeguards submitting methods himself dangerous salespersons eliminate from its persons control of other with the such duty sales force. The is not based on work, who respect to the details of liability, upon notion of vicarious person of such represents the will other responsible for its premise of his work and not as only as to result own actions. accomplished.” means it is to the which Inc., Redinger Living, 689 S.W.2d (Tex.1985), question as an general we held We do Carter’s status 415 contractor, contractor, but status is Kirby, duty independent like has a to exer- previ claim. As reasonably the control it retains over not a defense to Read’s cise Here, noted, undisputed that independent ously contractor’s it is work. vac sell vacuum its distributors by requiring its distributors to directed uum cleaners be marketed solely through In Greater Houston Transportation Co. v. in-home demonstration. It was Kirby’s Phillips, (Tex.1990), retention of control over this detail that we held company cab spe- owed no gave duty rise to the to exercise that con duty cial to admonish its cab drivers not to trol reasonably. Kirby’s agreement That carry guns. These cases are inapposite. with the distributors allowed the distribu Neither any involved issue of retained con- tors to independently contract with dealers trol specific aspects over of the details of does not excuse from duty to act performed the work reasonably regard to the detail —re Council, contractor. Spread See Golden quired in-home sales—over which did 290; 926 S.W.2d at Phillips, 801 at retain control. Corp. See Exxon v. Tid Rather, we solely decided both cases well, (Tex.1993) (noting on a straightforward common-law that in determining whether duty exists in analysis, risk, balancing the forseeability, case, retained control focus is on whether and likelihood of injury against the social retained control was specifically related to utility conduct, of the actor’s magni- alleged injury). tude the burden of guarding against the (and curiae) Finally, Kirby various amici injury, and the consequences placing argues if has a in this burden on the defendant. See Golden