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Thursday, May 19, 2005

Justice Owen and the Kirby vacuum cleaner case

To make Texas Supreme Court Associate Justice and Fifth Circuit nominee Priscilla Owen seem like a "judicial activist" who's "out of the mainstream," you have to distort her record badly. The Dems are busy doing that, but the mainstream media are their willing, even eager, accomplices.

The latest example to catch my attention is from the dependable (i.e., dependably wrong) Los Angeles Times, which tells us this today (boldface mine):

There was the case of Dena Read, a woman who was raped in her home by a Kirby vacuum salesman. The company had not checked his background, which included being fired from a previous job for sex offenses. The woman won a $160,000 jury verdict, and the Texas high court upheld the award on a 6-3 vote.

Owen dissented, arguing that the salesman was an independent contractor. For that reason, Kirby should not be held liable, she said.

Poppycock. Here are the undisputed facts, as set forth in the majority opinion in Read v. Scott Fetzer Co., 990 S.W.2d 732, 734 (Tex. 1998):

In 1992, Leonard Sena, a Kirby distributor and owner of Sena Kirby Company of San Antonio (the "Sena Company"), recruited Mickey Carter to be one of his dealers. Carter's relationship with the Sena Company was that of an independent contractor subject to the "Kirby Independent Dealer Agreement," which required him, also, to sell Kirby systems to consumer end-users through in-home demonstrations.

In applying for employment, Carter listed three references and three prior places of employment. Had Sena checked, he would have found that women at Carter's previous places of employment had complained of Carter's sexually inappropriate behavior. Sena also would have found that Carter had been arrested and received deferred adjudication on a charge of indecency with a child, and that one of the previous employer's records indicated that Carter had been fired because of that incident. Further, Sena would have found that these records also contained witness statements, a confession, Carter's guilty plea, and the indictment charging him with the offense. Sena did not check.

Not long after being hired, Carter scheduled an appointment with Kristi Read for a demonstration. Before that scheduled appointment, Carter went to Read's home and met with her for several hours. He also brought doughnuts one morning, and then followed Read to a playground, where he spoke with her some more and played with her daughter. That afternoon, Carter returned to Read's home, where he sexually assaulted her.

The legal issue raised by the case was whether Kirby, the vacuum cleaner manufacturer — which hadn't hired the rapist, and was in fact twice-removed from him — could be held responsible for the rape. A majority of the Texas Supreme Court held that in these particular circumstances — because of the unusual degree of control that the manufacturer had retained and enforced on its distributors like Sena's company — the manufacturer could be held liable even at its remote distance from either the rape or from Sena's investigation and hiring of the rapist.

But the LAT version entirely omits any mention of Sena. It simply tells you that "the company" — that is, the manufacturer, Kirby — "had not checked on [the rapist's] background." Well, yeah, Kirby hadn't checked out Mickey Carter — and neither had Hoover, Oreck, Bissell, Dyson, or any of the other vacuum cleaner manufacturers that had also never hired this rapist.

Associate Justices Hecht, Abbott, and Owen dissented, and the first two each wrote dissenting opinions in which Justice Owen joined. Here's how Justice Hecht began his dissent (boldface mine):

To achieve what it considers to be a just result in this case — that the Kirby Company pay for a sexual assault committed by its independent contractor's independent contractor — the Court faces three obstacles. First, Kirby must somehow be found to have controlled its distributors' operations in a way that led to the assault, even though it contracted with them that it would "exercise no control" over their selection of dealers. Second, it must have been foreseeable to Kirby that a distributor might not check a dealer applicant's background if not required to do so and might mistakenly hire a person with a history of sexual misconduct who might assault a customer.... Third, the result in this case must not seriously affect the wide range of direct sales and service businesses from Tupperware to television cable companies that employ independent contractors, something the Court has absolutely no desire to do.

Justice Hecht thought that the majority was stretching too far (boldface mine):

Today's decision is, I believe, aberrational and therefore not of much concern. The Court tries as much as it can to prevent its decision from impacting the multitude of businesses similar to Kirby's. A decision aimed at a result may not be consequential, but result-directed decision-making is more serious. A Court that departs from settled principles in one case may do so in another. To return to Justice Roberts' analogy, no appellate court decision should turn out to be "a restricted railroad ticket, good for this day and train only"; certainly, no decision should be designed with such restrictions.

Justice Abbott came to the same conclusion from a slightly different angle:

Kirby retained control over where the work was to be performed, not over who was to perform that work. Failure to require background checks of potential dealers relates to who is a dealer, not where the dealer works. As a result, the requisite relation between the control retained and the alleged injury is missing.

Justice Owen didn't even write a separate dissent! But the LAT would have you believe that she's practically out there at those vacuum cleaner home demonstrations, egging the rapists on and spitting in the victims' faces. This is their (and the Democrats') example of Justice Owen being "pro-business" and "anti-consumer."

While I happen to agree with the dissenters about this result, I certainly wouldn't question the integrity of lawyers and judges who'd stretch the law just a little bit to fit these particular facts. This is meat-and-potatoes tort law stuff — the kind of common law decision-writing that state court appellate judges do every day. But as Justice Hecht's dissent persuasively argues, if there was anyone in the Read case who was doing "activist judging," it was the majority engaging in "result-directed decision-making" — i.e., Kirby was the only deep-pocket defendant around to be sued, and the Read family had been terribly injured, so let's let them get their paws into Kirby's deep pockets.

Let's look at an analogy that might strike closer to home (so to speak) for more average citizens. Suppose you hire a general contractor to remodel your house. He in turn hires a painter, who jumps your back fence and rapes your next-door neighbor. Justice Owen would read Texas law to say that the rape was not your fault, and that your neighbor can't successfully sue you (but can sue the rapist and, maybe, your general contractor). But the result and maybe the logic of the majority opinion from which Justice Owen dissented suggest the opposite — you're on the hook, baby, 'cause that rapist couldn't have gotten into your back yard to jump your fence unless you'd hired the guy who hired him, so get out your wallet (or call your homeowners' insurance company and tell it to get out its wallet). Now, Justice Hecht thinks — and he's probably right — that on these slightly different facts (or if it'd been Tupperware instead of Kirby vacuums), the majority would have stuck to old, traditional tort law, and that the majority's departure in the Read case was an aberration. But when we're looking at promoting judges to a life-tenured position, do you want the squishy, sympathetic judge who makes aberrations, or the firm (i.e., old-fashioned), principled judge who sometimes says, even if it's harsh, "You've been hurt, but you still can't sue these particular folks for what happened to you because it wasn't their fault"?

Whether you want your appellate judges to selectively warp the law in order to benefit particularly sympathetic individuals or not, surely we can all agree that newspapers and politicians ought to tell the truth about a judicial nominee's written precedents. Here, the LAT simply didn't tell the truth.

Posted by Beldar at 10:25 PM in Law (2006 & earlier), Mainstream Media, Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Justice Owen and the Kirby vacuum cleaner case and sent a trackback ping are listed here:

» Credit Where Credit Is Due from Patterico's Pontifications

Tracked on May 19, 2005 11:25:00 PM

» When journalists lie.... from Media Lies

Tracked on May 19, 2005 11:40:28 PM

» Disagreeing with Beldar... from ThoughtsOnline

Tracked on May 20, 2005 5:24:04 PM

» Why Can't They Just Tell the Truth About Nominees? from A Bellandean! God, Country, Heritage

Tracked on May 21, 2005 1:30:35 AM

» Limited Liability Contractors from RAWbservations

Tracked on May 23, 2005 11:22:26 AM


(1) James B. Shearer made the following comment | May 20, 2005 1:15:12 PM | Permalink

I think your analogy is slanted. A better analogy would be: You are a landlord, you engage a painting contractor (who in turn engages a painter) to paint your tenant's apartment. The painter rapes the tenant. Reasonable people can differ about what your liability if any should be in this situation but I don't really see why it should depend on whether the painter is your employee, a directly engaged independent contractor or an indirectly engaged independent contractor.

Suppose instead of raping the woman the contractor had sold her a fake 5 year warranty and pocketed the money. Could Kirby avoid responsibility?

(2) DRJ made the following comment | May 22, 2005 2:32:09 PM | Permalink

First off, welcome back Beldar. You were missed.

Second, Mr. Shearer, I am troubled by your landlord-tenant analogy. It seems to me that a landlord would owe more of a duty to his tenant than a manufacturer would owe to a retail customer, twice-removed. I'm no tort lawyer, so perhaps I'm missing something in your point. Please help me out here. Of course, it could be that I went to law school too many years ago, when duty was still an important element of a tort. Even in those long-ago days, however, the duty element was becoming watered-down and perhaps it is meaningless now.

(3) James B. Shearer made the following comment | May 22, 2005 5:58:16 PM | Permalink

DRJ, for what it is worth I am not a lawyer at all, my comments are in terms of what makes sense to me. In fact I thought Kirby did arguably owe a duty to its customers in that the salesman is gaining entry to the customer's house as an authorized representative of the Kirby corporation. I think this is true regardless of the legal form of the connection between Kirby and the salesman (as with the landlord and the painter). This of course is somewhat dependent on the exact facts of the case which I do not know. However I will note that if you go to the Kirby website there is a form to fill out to schedule a home demonstration from an "independent distributor" suggesting the relationship is not in fact all that distant.

(4) DRJ made the following comment | May 22, 2005 9:31:45 PM | Permalink

Mr. Shearer: I agree that Kirby owes some duty to its customers, so in that sense I agree with your landlord-tenant analogy. Thanks for replying so promptly to my question.

Beldar: I agree it's hard to rule against victims like the Kirby plaintiff. Since I don't practice in this area, I can't say for sure but I suspect that Kirby and similar decisions make legal concepts like duty, independent contractor status, and privity into little more than good questions for law school exams. I also agree with your conclusion that we need "non-squishy" appellate judges who think these issues still matter.

(5) Ray made the following comment | May 23, 2005 10:12:43 AM | Permalink

The Democrats are not doing their homework. Kirby is owned by the richest democrat in the world, Warren Buffett(billionare second only to Bill Gates).

Kirby distributors do check out backgrounds, but former employers are sometimes silent because they are afraid of the liabilities if the say anything bad about a former employee.

Any company should not be held liable if they perform a honest background check (which I believe Len Sena did and that is why they went after the Kirby Factory instead of him).

Qwen was right on her descision.

(6) Ray made the following comment | May 23, 2005 10:13:33 AM | Permalink

The Democrats are not doing their homework. Kirby is owned by the richest democrat in the world, Warren Buffett(billionare second only to Bill Gates).

Kirby distributors do check out backgrounds, but former employers are sometimes silent because they are afraid of the liabilities if the say anything bad about a former employee.

Any company should not be held liable if they perform a honest background check (which I believe Len Sena did and that is why they went after the Kirby Factory instead of him).

Qwen was right on her descision.

(7) James B. Shearer made the following comment | May 23, 2005 7:02:40 PM | Permalink

Upon further reflection even my proposed analogy is slanted in that the landlord is engaging a painting contractor which has an independent existence. However it appears that Kirby distributors exist solely to sell (and perhaps service) Kirby vacuums. So the correct analogy would be a landlord with many apartments who sets up an "independent" painting contractor whose sole business is painting the landlord's apartments. In this case I don't see much public policy reason for limiting liability to the contractor. Of course Texas law and precedent might differ.

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