The Scott Fetzer Company, doing business as The Kirby Company ("Kirby"), appellant, appeals from a judgment awarding actual and exemplary damages to appellee, Dena Kristi Read, after she was sexually assaulted in her home by a Kirby dealer. In eight points of error, Kirby argues that the evidence is legally and factually insufficient to support jury findings (1) that Kirby breached any duty to Read; (2) that Kirby proximately caused Read's injuries; (3) that Kirby acted with gross negligence; and (4) awarding Read exemplary damages. We will affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
Kirby manufactures vacuum cleaners and sells them through a marketing system of in-home demonstrations performed by door-to-door salespersons. Kirby vacuums are multi-task appliances that retail for approximately $1,200-$1,300. Kirby has found that the most effective way to sell its products is through in-home demonstrations. As a result, Kirby eschews direct sales to the public and sells its products only to independent "distributors." The relationship between Kirby and each of its distributors is governed by a uniform Distributor Agreement, which proclaims that the distributors act as independent contractors in performing their duties under the contract. As part of their obligations to Kirby under the Distributor Agreement, the distributors are required to sell Kirby products exclusively through in-home demonstrations. Kirby would consider a violation of this provision a material breach of the Distributor Agreement. To promote this facet of the agreement, each distributor is required to build an in-home sales force by recruiting prospective door-to-door salespeople called "dealers."
In 1992, Leonard Sena, a long-time Kirby distributor, hired Mickey Carter to be a dealer. On his application, Carter listed three prior places of employment and three personal references. Sena did not call Carter's references or prior employers. In fact, Sena did nothing to check Carter's background or any of the information on his application. If Sena had contacted Carter's prior employers, he would have discovered that women who had worked with Carter at those jobs had complained that he engaged in inappropriate sexual conversations and made unwanted obscene telephone calls. In addition, at the time he applied to sell Kirby vacuums door-to-door, Carter had been arrested and had received deferred adjudication for an incident in which he exposed himself to two young girls. One of the previous employers listed on Carter's application had fired him because of that indecent-exposure incident. Carter's employment records with that company contained a copy of the confession Carter gave to the police when he was arrested. The confession stated:
The employment records also contained witness statements, Carter's guilty plea, and the indictment charging him with the offense. They also document another incident in which Carter was discovered masturbating in front of a woman at his apartment complex.
One of the personal references listed on Carter's application was David Bruchs, who worked with Carter's wife at a Seguin bank. Bruchs knew that Carter had exposed himself to two young girls at his apartment complex and was on probation. Bruchs also had information that Carter and his wife had been evicted from various apartments because of Carter's sexually inappropriate conduct. He also knew of a specific incident when Carter "flashed" another female bank employee. Sena never discovered this information, however, because he did not call Bruchs. Thus, in spite of Carter's sordid history, he was hired to sell Kirby vacuums to unsuspecting homemakers in the privacy of their homes.
In March 1993, after having been allowed into Read's home to perform a Kirby demonstration, Carter sexually assaulted Read while her children were taking an afternoon nap. Read and her husband sued Kirby, Sena, and Carter.
Due to the finding of gross negligence against Kirby, the trial court began the exemplary-damages phase of the trial. During their deliberations in this second phase, the jurors indicated that they had reached an impasse. The jury sent out a note stating that some of the jurors felt exemplary damages were included in the actual damages found in the trial's first phase. Outside the jurors' presence, counsel for all parties expressed concern at the jury's deadlock. The trial court noted that the jury had not been discharged, the verdict from the first phase had not been formally accepted, and no new evidence had been presented in the second phase that could prejudice the jury. The court proposed to counsel a procedure by which it would instruct the jury that, if they were not satisfied that they had followed the instructions in the first-phase charge, they could deliberate further on both actual and exemplary damages simultaneously. Both the Reads' and Sena's counsel expressed their satisfaction with that instruction, and the trial court subsequently gave it to the jury.
After further deliberation, the jury returned a new damages verdict: $200,000 in actual damages and $1,500,000 in exemplary damages. The Reads' counsel then objected for the first time to the court's new instruction and requested an additional period of reargument. The court denied this request and accepted the jury's verdict. Pursuant to former section 41.007 of the Civil Practice and Remedies Code, which limited exemplary damages to four times the amount of actual damages, the trial court reduced the exemplary damages award to $800,000.
The Duty Owed to Kristi Read
Read's cause of action rests on negligence and gross negligence on the part of Kirby. The common-law doctrine of negligence consists of three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from that breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). The threshold inquiry in a negligence case is whether a duty exists. El Chico Corp., 732 S.W.2d at 311. In its first two points of error, Kirby asserts that, because Sena and Carter were independent contractors, it owed no legal duty to Read. We disagree.
Whether the defendant owes a legal duty to the plaintiff is a question of law. Mitchell v. Missouri-K.-T. R.R., 786 S.W.2d 659, 662 (Tex.1990). The general rule is that an employer or owner is not liable for the acts or omissions of its independent contractors. See Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976); American Nat'l Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 373 (Comm.App.1936). Texas courts, however, have recognized many exceptions to this general rule of non-liability.
The peculiar-risk exception establishes liability for an employer who hires an independent contractor to do work that the employer knows is likely to create "a peculiar risk of physical harm to others" absent special precautions. The peculiar-risk exception is premised on the putative existence of a duty to third parties that the employer, for policy reasons, may not delegate to an independent contractor. Its use is traced to the leading English case of Bower v. Peate, 1 Q.B.D. 321 (1876), in which an independent contractor undermined the plaintiff's building by negligently failing to shore up an excavation on his employer's adjacent land. The court held the independent contractor's employer liable, finding that:
Id. at 326. The peculiar-risk exception represents an allocation of risk and prevents unscrupulous employers of independent contractors from hiding behind the drawbridge of immunity of the independent contractor's general rule of non-liability. Cf. Byrd v. Skyline Equipment Co., 792 S.W.2d 195, 197 (Tex.App.—Austin 1990), writ denied per curiam, 808 S.W.2d 463 (Tex.1991) (party cannot "shed" a legal duty by engaging an independent contractor to do the actual work).
The peculiar-risk exception is exemplified by section 413 of the Restatement:
Restatement § 413 (1965). Thus, under the peculiar-risk exception, liability may be imposed on the employer of an independent contractor if the employer has reason to know that the independent contractor's work is likely to create a peculiar risk of harm to others absent special precautions and if the employer takes no steps to minimize that risk.
A peculiar risk relates to special risks "peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable [person] would recognize the necessity of taking special precautions." Wilson v. Good Humor Corp., 757 F.2d 1293, 1304-05 (D.C.Cir.1985) (quoting Restatement § 413, cmt. b (1965)). "Peculiar," though, does not mean that the risk must be one that is abnormal
The peculiar-risk doctrine has been applied to many situations. For example, in Good Humor, a child was fatally struck by a car as she responded to a Good Humor ice cream vendor who parked his truck on the street and began "ringing the distinctive Good Humor jingle bells." 757 F.2d at 1296. In holding Good Humor liable under the doctrine of peculiar risk, the court explained:
Id. at 1305-06.
Kirby argues that peculiar risk is not a separate degree of dangerous activity, but is instead merely a part of the "inherently dangerous work" exception to the general rule of non-liability for acts of independent contractors. Texas case law has briefly discussed the doctrine of peculiar risk, but only in regard to section 416 of the Restatement, not section 413, and it has never been directly applied.
Many legal doctrines emphasize the importance of specific circumstances, but it does not follow that they all embrace the same fundamental principles. The difference between the doctrines of peculiar risk and inherently dangerous work is that peculiar risk occupies an intermediate position between the employer's absolute immunity for an independent contractor's negligence in ordinary
Read asks us to adopt the particular version of the peculiar-risk exception embodied in Section 413. We need not formally adopt section 413, however, because we believe a balancing of the factors present in this case under traditional Texas notions of duty is sufficient to impose on Kirby a duty to take reasonable precautionary measures designed to prevent the type of injury suffered by Read.
In deciding whether to apply the peculiar-risk exception in this case, this Court must balance several interrelated factors. We must weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Although Texas courts have traditionally considered foreseeability to be the most significant of these factors, other factors must also be considered, including whether one party had superior knowledge of the risk or a right to control the actor who caused the harm. See Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993). In determining whether a legal duty exists, we also take into account not only the laws and policies of this state, but the law of other states and the United States and the views of respected and authoritative restatements and commentators. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 351 (Tex.1995).
The dominant factor, and the one we address initially, is foreseeability. Kirby markets its products exclusively through in-home demonstrations and sales conducted by dealers. It is no great surprise that some of those applying to be Kirby dealers have histories of crime, violence, or sexually deviant behavior. Logically, if precautions are not taken to weed out applicants with such past histories, it is likely that some of them will be hired. Sending a salesperson with a history of criminal offenses or deviant sexual behavior into the home of an elderly individual or a homemaker alone or with small children, in an environment where the resident could easily be impeded from calling for help, is calculated to create a risk that an ill-intentioned salesperson will take advantage of the customer in some way.
In support of its position that no duty exists, Kirby cites the recent supreme court decision of Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex.1996). In Akins, the plaintiff sought recovery for the sexual molestation of her son by the scoutmaster of his Boy Scout troop. The local scout council, Golden Spread Council ("GSC"), had received a report that an assistant troop leader named Estes had been "messing with some boys." GSC did not report this to the Boy Scouts of America, Inc. ("BSA"), which maintained an "unfit list" containing the names of persons it considered unfit for leadership positions. As a result, Estes's name never made it onto BSA's unfit list. Thereafter, with only minimal further investigation, GSC proceeded to recommend Estes as the scoutmaster for another troop. After Estes molested the plaintiff's son, she sued GSC and BSA. The trial court granted summary judgment for both defendants, but the court of appeals reversed and remanded for trial. Although it affirmed the court of appeals' reversal of summary judgment as to GSC, the supreme court reinstated the summary judgment in favor of BSA, holding that BSA owed no duty to the victim under the particular facts of that case.
We believe Akins is distinguishable from the present case. First and foremost, the
Akins v. Estes, 888 S.W.2d 35, 41 (Tex. App.—Amarillo 1994), rev'd in part and aff'd. in part sub nom. Golden Spread Council v. Akins, 926 S.W.2d 287 (Tex.1996). Thus, the gist of the plaintiff's complaint in Akins was that GSC had specific information about Estes, yet failed to use it; the scope of the asserted duty was that BSA itself should have been required to "screen, train, and supervise" Estes. In rejecting this asserted duty, the supreme court emphasized not only that BSA itself had no information about Estes, but also that imposing on BSA the duty of personal screening and supervision urged by the plaintiff would be "a tremendous burden." 926 S.W.2d at 290.
Unlike the plaintiff in Akins, Read's cause of action is founded on Kirby's knowledge of the peculiar risk of sending persons of unknown backgrounds into private homes, a knowledge arising in part from Kirby's specific awareness of prior assaults by Kirby dealers. Moreover, the duty Read seeks to impose is not for Kirby itself to screen, train, and supervise its dealers, but for Kirby, having a direct contractual relationship with its distributors, to take reasonable precautions through its relationship with those distributors, including Sena. The present case would be more factually analogous to Akins if, for example, (1) Sena had actually discovered the reports of Carter's deviant behavior, (2) Sena failed to further investigate the reports and failed to make Kirby aware of the reports, (3) Sena hired Carter anyway, (4) Carter assaulted Read, and (5) Read sued Kirby asserting that Kirby had a duty independently to screen and supervise all of its dealers, including Carter. If those were the facts and allegations in the present case, our analysis could well be controlled by Akins. The differences, however, are obvious and significant: (1) Kirby was effectively Sena's employer, putting Kirby in a position to direct, or at least warn, Sena to take precautionary measures, (2) Kirby, not Sena, was aware of previous assaults by Kirby dealers, and (3) the scope of the duty asserted by Read would require by Kirby efforts that were minimal.
In the present case, the risk created by sending an individual with felonious tendencies into the home of a vulnerable person is foreseeable both through common sense and through Kirby's actual knowledge of prior assaults by dealers selling Kirby vacuums. The record demonstrates that in 1983, for example, Linda McLean let a Kirby dealer into her apartment to demonstrate a Kirby vacuum cleaner. The dealer brought with him a set of knives as a "door opener" or "gift offering" for allowing the in-home demonstration. After beginning the demonstration, the Kirby dealer used the knives in assaulting and raping McLean. See McLean v. Kirby Co., 490 N.W.2d 229, 232 (N.D.1992). When the Kirby dealer who raped McLean was hired, he had already been convicted of two assault charges and two weapons charges earlier that year. Additionally, he had a charge of criminal sexual conduct pending against him. Id. As with Mickey Carter, Kirby did not take any precautions in directing its independent distributor to perform a background check on the Kirby dealer who assaulted McLean. The North Dakota Supreme Court affirmed an award of damages in McLean's suit against Kirby, holding that because of Kirby's door-to-door sales requirement, Kirby created a peculiar risk and had a duty to require its distributors to investigate potential dealers before hiring them. Id. at 234.
It is worth noting that Gene Windfeldt, who was president of Kirby at the time of the trial in the present case, was the divisional supervisor of the North Dakota region where
Moreover, the McLean rape was not the first recorded incident of a Kirby dealer assaulting a customer. The record contains evidence of other assaults on Kirby customers that Kirby must have been aware of. For example, in 1969 Kirby was sued by a woman who was assaulted and battered by a Kirby dealer who had a criminal record. See Bennett v. T & F Dist. Co., 117 N.J.Super. 439, 285 A.2d 59 (Ct.App.Div.1971). In Bennett the New Jersey appellate court affirmed a denial of summary judgment sought by the defendants and remanded the cause for trial. Id. 285 A.2d at 62. Windfeldt, the president of Kirby since 1988, testified that in addition to the Bennett and McLean rapes, he was aware of at least one other incident, in the late 1980's, in which a woman was accosted or assaulted in her home by a Kirby dealer.
Besides foreseeability, other factors also weigh in favor of imposing on Kirby a duty to take reasonable precautions. In the present case, Kirby was in an ideal position to ameliorate the peculiar risk inherent in the in-homes sales it required by motivating its distributors to take adequate safety precautions. This could be done through contractual requirements or through warnings placed in Kirby's regular communications with its distributors. Thus, Kirby is in the best position to ensure that reasonable safety precautions are taken, because it selects the work to be performed, hires contractors to perform it, and benefits from the performance of the work. Prosser and Keeton on the Law of Torts § 71, at 509 (5th ed. 1984); see also Guido Calabresi, Optimal Deterrence and Accidents, 84 Yale L.J. 656 (1975) (in these cases there is special reason to place initial responsibility on employer if he is "more likely to consider the risk" and is better able to assess ways to mitigate risk); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 547 (1961).
Although the likelihood of injury at the hands of a Kirby dealer was not shown to be great, that factor is offset by the grave nature of the risk and the severity of the potential injury. Few crimes are considered more repugnant by our society than sexual assault. Gene Windfeldt, President of Kirby, testified that there is a serious risk involved in allowing someone with a deviant criminal background to participate in door-to-door sales. Marshall Herron, Kirby's Vice-President of Sales, testified that a person with a history like Mickey Carter's should not be retained as a Kirby dealer because he would be a threat to the people who allowed him to enter their homes.
The above factors weigh heavily in favor of imposing a duty on Kirby, but we must balance them against the social utility of Kirby's conduct, the magnitude of the burden on Kirby to take reasonable care under the circumstances, and the consequences of placing the burden of Kirby. Greater Houston Transp. Co., 801 S.W.2d at 525. First, although home solicitation may be helpful to the portion of the population that is home-bound, its general social utility seems to be minimal.
Nor would placing a duty on Kirby to require or warn its distributors to screen potential dealers be a significant burden on Kirby. Some jurisdictions have imposed a stricter than normal duty on all companies that hire persons to enter prospective customers' homes or otherwise come into close contact with the public.
Kirby also argues, however, that the consequences of placing this burden on it would be burdensome on its distributors, who would actually have to perform the background checks. This argument appears disingenuous, because Kirby's practice since 1992 has been to instruct some of its distributors to "Always Be Sure To Have A Thorough Criminal Background Check Performed On Each Applicant Before Recruiting Anyone." Although the training manual containing this instruction was only offered for sale, to distributors who attended certain Kirby conferences in Cleveland, Kirby presumably would not have gone to the trouble of printing it if it had not wanted the distributors who did obtain it to abide by its warning. Thus, Kirby itself obviously felt that the benefits of performing background checks on prospective dealers outweigh any burdens the performance of such checks imposes on its distributors.
Further, Texas courts have often imposed an additional duty with regard to investigating a prospective employee in situations where the employee has special access to a particularly vulnerable group. See Porter v. Nemir, 900 S.W.2d 376, 386-87 (Tex.App.— Austin 1995, no writ) (recognizing higher duty in context of drug and alcohol abuse treatment counselors); Deerings W. Nursing Ctr. v. Scott, 787 S.W.2d 494, 496 (Tex.App.— El Paso 1990, writ denied) (recognizing higher duty with respect to persons involved in care of elderly); cf. Tex. Educ.Code Ann. § 44.034 (West 1996) (requiring any person who contracts with school district to give notice of prior convictions).
Independent of the peculiar-risk doctrine, we think Kirby also owed Read a duty of care under section 414 of the Restatement. The question of control over the work performed by an independent contractor or his employees arises in connection with questions concerning liability of the employer of the independent contractor to third persons for the negligence of the independent contractor or its employees. The supreme court expressly recognized an exception to the general rule of non-liability of the employer when it adopted section 414 of the Restatement. See Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). Section 414 provides: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care." Restatement § 414 (1965). This rule applies when the employer retains control over some aspect of the independent contractors work, but does not retain the degree of control that will subject him to liability as a "master" under traditional master-servant law. Redinger, 689 S.W.2d at 418; Restatement § 414, cmt. a (1965); see also Exxon Corp. v. Quinn, 726 S.W.2d 17, 19-20 (Tex.1987). The employer's specific control must be more than a right to order that work start or stop or that progress reports be generated. See Redinger, 689 S.W.2d at 418 (citing Restatement § 414, cmt. c (1965)). The right to control an independent contractor or his employees can arise either by contract or by course of dealing. Pollard v. Missouri Pac. R.R., 759 S.W.2d 670, 671 (Tex.1988).
Kirby argues that section 414 and Redinger are limited to premises liability cases and are not applicable to the facts of this case. We disagree. In Redinger, the supreme court adopted section 414 in its entirety and did not limit its future application solely to premises liability cases.
Kirby retained strict control over exactly how and where its products were to be sold. To maximize its profits, Kirby required its distributors and dealers to enter into people's homes and engage in extensive personal contact in an isolated setting. Nonetheless, Kirby contends its contractual requirements with its distributors are not evidence of control, but merely contract terms that are "conditions of employment." We disagree.
In support of its contention, Kirby cites Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1 (Tex.App.—Houston [1st Dist.] 1995, writ denied), and Ross v. Texas One Partnership, 796 S.W.2d 206 (Tex.App.—Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex.1991). In Farrell, the plaintiffs sued the Yellow Cab Company after one of its independently contracted drivers struck the plaintiffs' car, injuring them. In affirming a summary judgment against the plaintiffs, the court said that the driver's work was completely independent in that he controlled "how, when, where, and if he worked." Farrell, 908 S.W.2d at 3 (emphasis added). Additionally, the court held that although the title to the cab was in Yellow Cab's name, this was merely for insurance purposes and a prerequisite to signing the independent contractor agreement. Id. at 4. Similarly, in Ross, the plaintiff, who was shot by a security guard, sued the owner of the apartments where the security guard worked. Ross, 796 S.W.2d at 210. The Dallas Court of Appeals affirmed a summary judgment against the plaintiff, holding that although the contract between the parties specified certain tasks to be undertaken by the security company, the owner of the apartments did not have the right to control the "methods" of accomplishing those tasks assigned to the security company. Id.
Unlike both Ross and Farrell, Kirby's requirement that its distributors and dealers sell exclusively through in-home demonstrations is a contractual mandate evincing Kirby's exercise of control over the medium and locality for selling its products. In both Ross and Farrell, we think liability would have attached if, as here, the employer had retained contractual control over the manner and location in which the task was to be accomplished.
Kirby also cites Tirres v. El Paso Sand Prod., Inc., 808 S.W.2d 672 (Tex.App.—El Paso 1991, writ denied), for the proposition that contractual requirements are merely contract terms and not evidence of control. Tirres stands for the proposition that section 414 does not purport to impose general vicarious liability on the employer for the independent contractor's entire performance; the exception to the general rule still applies when the employer retains control over the specific aspect of the contractor's work alleged to have caused the injury. Id. at 676. Stated another way,
Id. (emphasis added); cf. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993) (in cases alleging negligent security, court's inquiry must focus on who had specific control over safety and security of premises, rather than more general right of control over operations).
Here, Kirby retained the right to control precisely where and how its products were to be sold—through personal in-home demonstrations. After retaining this control in the present case, Kirby failed to take any precautions regarding Sena's activity in recruiting dealers to perform such demonstrations. Because Kirby retained the right to control where and by what method its distributors and dealers sold Kirby products, and because it was this aspect of the marketing process that gave rise to the risk of harm to customers, we conclude that Kirby had a duty of care toward Read under section 414 of the
Summarizing the duty issue, we hold that Kirby was under a duty to take reasonable precautions to prevent the assault on Read because of the peculiar risk inherent in permitting in-home sales to be conducted by persons with histories of crime, violence, or sexually deviant behavior. Additionally, Kirby was under a duty to take appropriate care because, by requiring that its products be sold only through in-home demonstrations, Kirby exercised sufficient control to owe a duty of reasonable care to Read in connection with the selection of persons to perform those demonstrations. We need not address precisely what steps would be necessary to satisfy the duty Kirby owed to Read.
In its third point of error, Kirby argues that evidence is legally insufficient to show that Kirby's negligence proximately caused Read's damages. In deciding a no-evidence point, this Court must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). We will uphold the finding if more than a scintilla of evidence supports it. Id. The evidence supporting a finding amounts to more than a scintilla if reasonable minds could arrive at the finding given the facts proved in the particular case. Id.
The components of proximate cause are "cause in fact" and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). The test for cause in fact is whether the negligent "act or omission was a substantial factor in bringing about the injury" without which the harm would not have occurred. Doe, 907 S.W.2d at 477 (quoting Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995)). Cause in fact is not shown if the defendant's negligence did no more than furnish a condition that made the injury possible. Doe, 907 S.W.2d at 477; Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995). The question of proximate cause is one of fact that is particularly within the province of the jury, and a jury finding on proximate cause will be set aside only in the most exceptional circumstances. Farley v. M M Cattle Co., 529 S.W.2d 751, 756 (Tex.1975); Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 425-26 (Tex.App.— Houston [1st Dist.] 1990, no writ).
In the present case, Kirby's lack of an instruction or warning advising Sena to conduct a background investigation or at least call Carter's past employers and references was a substantial factor in bringing about Read's injury. It did not simply cause Read to be in the wrong place at the wrong time. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991) ("There may be cases in which ... a defendant's negligence exposes another to an increased risk of harm by placing him in a particular place at a given time."). Although Sena admitted that he did not call Carter's references or past employers or do any other type of background check, he testified that he would have done so if directed to by Kirby. It is undisputed that if Sena had merely called Carter's prior employers or references, he would have learned about Carter's deviant history and would not have hired him as a Kirby dealer.
The present case is easily distinguished from Doe. First, as discussed above, if Sena had been directed by Kirby to investigate Carter's employment or criminal history, he would have done so, would have learned about Carter's deviant history, and would not have hired him as a Kirby dealer. Moreover, while the molestations in Doe took place on "private camping trips" not connected to the Boys Club, Carter was in Read's home specifically to give a Kirby demonstration and try to make a sale of a Kirby vacuum. Indeed, it was only through Carter's cloak of legitimacy as a Kirby dealer that he gained access to Read's home at all. We conclude there is more than a scintilla of evidence to show that Kirby's failure to warn or instruct its distributor Sena to conduct a background check of Carter was a cause in fact of Read's injury.
The other element of proximate cause is foreseeability, which requires that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. Doe, 907 S.W.2d at 478; Travis, 830 S.W.2d at 98; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex.1985). The particular accident need not be foreseen, but the injury must be of such a general character as might reasonably have been anticipated. Nixon 690 S.W.2d at 551; Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939).
Kirby contends the injury to Read was not foreseeable because in the eighty-year history of Kirby, there have apparently been only three reported assaults on Kirby customers by dealers during in-home demonstrations before Carter's assault on Read. Foreseeability, though, does not require that parties anticipate the precise manner in which injury will occur once they have created a dangerous situation through their negligence. Travis, 830 S.W.2d at 98. As discussed above, many of Kirby's officers, including both its president and vice-president of sales, acknowledged that allowing someone with a background like Carter's to be sent behind closed doors selling Kirby vacuum cleaners creates a risk so severe that anything reasonable should be done to prevent it. This testimony, combined with evidence that Kirby was aware of at least three prior assaults on women by Kirby dealers during in-home demonstrations, constitutes more than a scintilla of evidence that Read's injury was foreseeable. We overrule point of error three.
In its fourth point of error, Kirby asserts that the evidence is factually insufficient to support the jury's finding that Kirby's negligence proximately caused Read's injuries. When reviewing a fact finding to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if the evidence is so weak as to make the finding clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Having examined all the evidence, and in light of our discussion above, we conclude the evidence supporting the jury's finding that Kirby's negligence proximately caused Read's injuries is not so weak as to make the finding clearly wrong and unjust. See Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994). We overrule point of error four.
In its fifth point of error, Kirby argues that the evidence is legally insufficient to support the finding that Kirby acted with gross negligence. We agree. The test for gross negligence contains both an objective and a subjective component. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 21-22 (Tex.1994); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 325-26 (Tex.1993). Objectively, the defendant's conduct must create "an extreme degree of risk." Moriel, 879 S.W.2d at 22. Subjectively, the defendant "must have actual subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety or welfare of others." Id. at 23.
The objective component of gross negligence is "a function of both the magnitude and the probability of the potential injury, [and] is not satisfied if the defendant's conduct creates a remote possibility of serious injury; rather, the defendant's conduct must create the `likelihood of serious injury' to the plaintiff." Universal Servs. Co., Inc. v. Ung, 904 S.W.2d 638, 641 (Tex.1995) (citing Moriel, 879 S.W.2d at 22) (emphasis added). In Ung, a member of a road crew was killed when he was struck by a trailer that became detached from its truck when the truck hit a pothole. 904 S.W.2d at 639. Eight months prior to Ung's death, his supervisor had witnessed another trailer come loose after hitting the same pothole. Although no one was injured on that earlier occasion, the supervisor was clearly aware of the pothole and knew that his crew was working near it the day of Ung's death. Id. In a suit against Universal brought by Ung's survivors, a jury found Universal grossly negligent. The supreme court reversed the finding of gross negligence against Universal, holding that "even though the adjacent pothole had previously caused at least one other trailer to decouple, this evidence is as a matter of law not sufficient" to create the likelihood of serious injury. Id. at 642 (emphasis added).
As to this issue, we are unable to find a meaningful distinction between the present case and Ung. Based on that controlling precedent, the evidence in the present case, even viewed in the light most favorable to the jury's verdict, does not show that an assault by a Kirby dealer on a customer was "likely." At the time of trial in this case, there were over 700 Kirby distributors and 12,000 Kirby dealers around the world. To maintain this sales force, Kirby distributors recruit roughly 50,000 people each year for dealer positions. These distributors and dealers provide approximately 1.5 million in-home demonstrations annually. Even with this number of demonstrations, there is evidence of only four reported incidents of sexual assault by a dealer or distributor against a customer in Kirby's eighty-year history. While the seriousness of the injury is indisputably extreme, and even though it was reasonably foreseeable that such an assault could occur, nonetheless the record contains no evidence that it was likely to occur. See Ung, 904 S.W.2d at 642. The evidence is legally insufficient, therefore, to support the finding of gross negligence against Kirby.
Having sustained Kirby's fifth point of error, we need not address its remaining points, which challenge the finding of gross negligence and the award of exemplary damages.
Read's Cross Point
In a single cross-point, Read argues that the trial court erred by not accepting the jury's first determination of actual damages. During the jury deliberations for the second phase of the trial, the jurors sent out a note saying that they had reached an impasse in
After additional discussion among the parties, the trial judge explained the specific instruction he proposed to give the jury and asked the parties' trial counsel if that was satisfactory. Read's counsel responded, "If we're going to give an instruction, I'm satisfied with that instruction Your Honor." (Emphasis added.) Counsel for Kirby again was the only party to lodge an objection. The court overruled Kirby's objection and gave the instruction to the jury orally in open court.
After further deliberations, the jury returned a new damages verdict, finding $200,000 in actual damages and $1,500,000 in exemplary damages. It was at this time that Read first objected, asking the court to allow a brief period of reargument. The court denied this request, accepted the jury's verdict, and released the jurors from their oath.
Without regard to whether the trial judge erred in giving the jury the supplemental instruction, Read waived any right to complain by failing to object timely to the trial court's action. Objections to supplemental jury instructions must be made in conformity with the rules regarding the charge. Garza v. Southland Corp., 836 S.W.2d 214, 219-20 (Tex.App.—Houston [14th Dist.] 1992, no writ); see also Tex.R. Civ. P. 272, 286. Rule 272 provides that in every instance, on penalty of waiver, a party shall present to the court objections to the court's charge before the court reads the charge to the jury. See TEX.R. CIV. P. 272; Missouri Pac. R.R. v. Cross, 501 S.W.2d 868, 872-73 (Tex.1973). Thus, in order to preserve for appellate review a complaint about a supplemental charge, a party must make any objections or requests to such a charge before it is read to the jury. Cf. George Pharis Chevrolet, Inc. v. Polk, 661 S.W.2d 314, 317-18 (Tex.App.—Houston [1st Dist.] 1983, no writ) (failure to object to court's further communications and instructions to jury constituted waiver). By failing to object to the supplemental instruction in the present case until after it was read to the jury and after the jury deliberated and returned a verdict, Read waived any complaint. Indeed, before the instruction was read, Read's counsel affirmatively told the trial court they were "satisfied" with the instruction. Although Kirby objected to the supplemental instruction before it was read to the jury, Read may not use another party's objection to preserve error where the record does not reflect a timely expression of her intent to adopt the objection. See Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.—Dallas 1992, pet. ref'd).
Having concluded that the evidence is legally insufficient to support the finding of gross negligence, we reverse the portion of the trial court's judgment awarding exemplary damages and render judgment denying such damages. We affirm the remainder of the trial court's judgment.