Justice GONZALEZ delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice ENOCH, Justice SPECTOR, Justice BAKER, and Justice HANKINSON joined.
A customer who was raped by a door-to-door vacuum cleaner salesman brought a negligence action against the manufacturer and the distributor, who operated as an independent contractor. Based on favorable jury findings, the trial court rendered judgment for the plaintiff for actual and punitive damages. The court of appeals affirmed the actual damages part of the judgment and reversed and rendered the punitive damages award. 945 S.W.2d 854. The question presented is whether a company that markets and sells its products through independent contractor distributors and exercises control by requiring inhome demonstration and sales, owes a duty to act reasonably in the exercise of that control. We hold that the company does owe such a duty. Accordingly, we affirm the court of appeals' judgment.
The Scott Fetzer Company d/b/a The Kirby Company ("Kirby") manufactures vacuum cleaners and related products. These products are sold only to independent distributors who are governed by a uniform distributor agreement. Each distributor is required to establish a sales force by recruiting prospective door-to-door salespeople called "dealers" for the
Further, regarding the in-home dealers, the "Kirby Independent Dealer Agreement" reads, in pertinent part, as follows:
Additionally, Kirby enforces its contractual requirements through yearly reviews during which divisional supervisors verify that distributors are complying with the these requirements as well as others in the agreements.
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.
Read and her husband sued Kirby, Sena, and Carter for negligence and gross negligence. The claims against Carter were nonsuited before trial. The trial court submitted the case to the jury with a broad form negligence question. The jury found the Sena Company and Read each ten percent negligent, and Kirby eighty percent negligent. The jury also found Kirby grossly negligent. The trial court rendered judgment against Kirby for $160,000 in actual damages and $800,000 in punitive damages.
II Duty: Right of Control
Read's pleadings allege that Kirby has a "duty to take reasonable precautions to minimize the risk to its customers from coming into contact with Kirby dealers who have criminal and/or psychiatric records." Kirby and some of the amici curiae characterize Read's pleadings and arguments as seeking to impose vicarious liability on a general contractor for the torts of an independent contractor or as seeking to establish a master-servant relationship between Kirby and Carter. However, we understand Read's position to be that Kirby was negligent through its own conduct of creating an in-home marketing system without adequate safeguards to eliminate dangerous salespersons from its sales force. The duty is not based on a notion of vicarious liability, but upon the premise that Kirby is responsible for its own actions.
In Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985), we held that a general contractor, like Kirby, has a duty to exercise reasonably the control it retains over the independent contractor's work. Here, by requiring its distributors to sell vacuum cleaners only through in-home demonstration, Kirby has retained control of that portion of the distributor's work. Kirby must therefore exercise this retained control reasonably.
In concluding that Kirby must act reasonably, we require no more and no less than is required of other general contractors in similar situations. See Redinger, 689 S.W.2d at 418. We recognized the direct liability of a general contractor for failure to reasonably exercise the control it retained over an independent contractor when we adopted Section 414 of the Restatement (2d) of Torts. Id. Through its contract with Sena, Kirby retains control of specific details of the work by requiring the "in-home" sales of its vacuum cleaners.
Kirby argues that it owes no duty because it has successfully divorced itself from the independent dealers. Kirby notes that it has no contract with the dealers, only with the distributors. Moreover, Kirby's contract with its distributors provides that: "[Kirby] shall exercise no control over the selection of Distributor's... Dealers.... The full cost and responsibility for recruiting, hiring, firing, terminating and compensating independent contractors and employees of Distributor shall be borne by Distributor."
Kirby also relies heavily on the fact that Read stipulated that Carter was an independent contractor. The stipulation provided that "[a]n independent contractor is a person who, in pursuit of an independent business, undertakes to do specific work for another person, using his own means and methods without submitting himself to the control of such other persons with respect to the details of the work, and who represents the will of such other person only as to the result of his work and not as to the means by which it is accomplished."
We do not question Carter's status as an independent contractor, but this status is not a defense to Read's claim. As previously noted, it is undisputed that Kirby directed its distributors that its Kirby vacuum
Finally, Kirby (and various amici curiae) argues that if Kirby has a duty in this case, all companies or individuals that employ independent contractors will be subject to the same duty. As we noted earlier, Kirby misunderstands the claim Read is making. Read merely asserts that Kirby, having retained control over vacuum cleaner sales by requiring in-home demonstrations, has a duty to exercise its control reasonably. This is a well-established duty. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex.1997); Exxon Corp., 867 S.W.2d at 23; Redinger, 689 S.W.2d at 418; RESTATEMENT (SECOND) of Torts § 414 (1965).
It has also been suggested that two other cases support the position that Kirby owed no duty in this case. In Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex.1996), we held that the Boy Scouts of America owed no duty to screen the criminal history of adult volunteers. In Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 527 (Tex.1990), we held that a cab company owed no special duty to admonish its cab drivers not to carry guns. These cases are inapposite. Neither involved any issue of retained control over specific aspects of the details of the work performed by an independent contractor. See Golden Spread Council, 926 S.W.2d at 290; Phillips, 801 S.W.2d at 526. Rather, we decided both cases solely on a straightforward common-law duty analysis, balancing the risk, forseeability, 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. See Golden Spread Council, 926 S.W.2d at 289-90; Phillips, 801 S.W.2d at 525. By contrast, today's holding is premised on the duty emanating from Kirby's retained control over the details of the work. This duty derives solely from the retained control, not from any balancing analysis. See Redinger, 689 S.W.2d at 418.
III Breach of Duty
In the court of appeals, Kirby argued only that it did not have a duty. It did not challenge the jury finding of breach of duty. 945 S.W.2d at 868 n. 14. That issue is not before us, thus we express no opinion about it.
IV Proximate Cause
Kirby, however, does argue that no evidence or factually insufficient evidence supports the jury's finding that Kirby's negligence proximately caused Read's injuries. We do not have jurisdiction to
Regarding the legal sufficiency of the evidence, we must determine if more than a scintilla of evidence supports the jury's affirmative finding of proximate cause. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). Proximate cause consists of two elements: cause-in-fact and foreseeability. Id. at 118; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). We therefore must examine the record to determine whether there is legally sufficient evidence to support an affirmative finding on each of these elements.
The cause-in-fact element of proximate cause is met when there is some evidence that the defendant's "`act or omission was a substantial factor in bringing about injury' without which the harm would not have occurred." Id. (quoting Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995)). Here, Sena testified that although he had not done a background check on Carter, he would have if Kirby had directed him to. There was evidence that Sena would have learned about Carter's past problems if he had performed a background check. Sena testified that he would not have hired Carter as a Kirby dealer if he had learned about Carter's history. We conclude that there is legally sufficient evidence to support a cause-in-fact finding.
The other element of proximate cause is foreseeability. In the context of proximate cause, foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Doe, 907 S.W.2d at 478. Foreseeability in the context of causation asks whether an injury might reasonably have been contemplated because of the defendant's conduct. Id. Foreseeability does not permit simply viewing the facts in retrospect and theorizing an extraordinary sequence of events by which the defendant's conduct caused the injury. Id. Rather, the question of forseeability "involves a practical inquiry based on `common experience applied to human conduct.'" Id. (quoting City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987)); see also, e.g., Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992).
Sending a sexual predator into a home poses a foreseeable risk of harm to those in the home. Kirby dealers, required to do in-house demonstration, gain access to that home by virtue of the Kirby name. A person of ordinary intelligence should anticipate that an unsuitable dealer would pose a risk of harm. See Doe, 907 S.W.2d at 478. We hold that there is more than a scintilla of evidence that the risk of harm created by Kirby's in-home sales requirement was foreseeable.
V Punitive Damages
The court of appeals held that there was legally insufficient evidence to support the gross negligence finding. 945 S.W.2d at 870. For the reasons stated in the court of appeals' opinion, we agree.
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For the above reasons, we affirm the court of appeals' judgment.
Justice HECHT filed a dissenting opinion, in which Justice OWEN joined.
Justice ABBOTT filed a dissenting opinion, in which Justice OWEN joined.
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. The problem here is that in over eighty years of doing business, Kirby has had only one other dealer who sexually assaulted a customer, even though currently some 12,000 Kirby dealers make 1.5 million in-home demonstrations annually. While a risk may be improbable and still be foreseeable, just eight years ago in Greater Houston Transportation Co. v. Phillips,
The Court's solution is to limit its decision, as much as possible and well beyond what general principles will allow, to companies that require their products to be sold exclusively in customers' homes. A company that only allows its products to be sold in homes is unaffected, even if the risk to customers is the same. Today's "vacuum cleaner rule", carefully tailored and trimmed, is to apply in all cases exactly like this one, of which there appear to be none. In all other cases, the "taxicab rule" continues to apply, absent other sympathetic circumstances. Employing its chancery jurisdiction, the Court achieves a good result in this one case without adversely affecting the direct sales industry, the employment of independent contractors, or, it is hoped, anyone else at all. Today's decision is, to borrow Justice Roberts' metaphor, "a restricted railroad ticket, good for this day and train only."
Both parties, on the other hand and to their credit, insist that this case is not unique and that it should be decided based on a neutral application of settled legal principles. I agree, and in my view, these principles require a different decision. Accordingly, I respectfully dissent.
Kristi Read suffered a terrible injury: she was sexually assaulted in the living room of her home by Mickey Carter, who was there ostensibly to demonstrate Kirby vacuum cleaners, which he sold. Carter was an independent contractor selected to be a Kirby "dealer" by Leonard Sena, a Kirby "distributor" who was himself an
It perhaps goes without saying that a determination whether Kirby is liable for Read's injury must be guided not by a goal of affording Read compensation, as desirable as that may be, but by generally applied principles of legal responsibility, basic among which is that individuals should be responsible for their own actions and should not be liable for others' independent misconduct. From this fundamental precept it follows that a person who employs an independent contractor must use reasonable care to select someone competent to do the work assigned
The basic notion of individual responsibility also dictates that "[a]s a rule, `a person has no legal duty to protect another from the criminal acts of a third person.'"
No one questions that under these rules, Sena is liable to Read for failing to use reasonable care in selecting Carter as a competent dealer, as the jury found. Sena's application form required Carter to list employment references, which Carter did, and inquired whether the applicant
If Sena were incompetent to act as a distributor, Kirby would be liable to Read if its failure to exercise reasonable care in selecting Sena proximately caused her injury. But Sena was not incompetent. In more than twenty years as a distributor, recruiting and training dozens of dealers who altogether had made something like 100,000 in-home demonstrations, Sena had never before had a complaint of dealer misconduct. His mistake in selecting Carter does not prove Sena incompetent. Read does not claim, nor could she do so successfully, that Kirby is liable to her for selecting Sena as a distributor.
Rather, Read claims that Kirby was negligent in not requiring its distributors to investigate potential dealers' criminal backgrounds. Read and Kirby take polar positions on how the relevant legal principles already stated apply to this claim, but they agree on one very important matter of process: the decision should turn on the neutral application of general rules and not on particularized corollaries adapted to the facts of this one case. Kirby argues that no special duty should be imposed on it, and Read strenuously insists that none is needed. To fashion a rule for the particular circumstances of this case, Read argues, would be an illegitimate exercise of appellate jurisdiction: "A fact-specific conclusion that a defendant did not have a `duty' under the particular circumstances of an individual case would really just be a finding that, given the facts, the defendant acted reasonably"—a decision for the fact finder, not an appellate court. Likewise, a fact-specific conclusion that a defendant did have a duty under the particular circumstances of an individual case would be no more than a finding that the defendant had acted unreasonably. In other words, a legal duty cannot legitimately be defined or applied to treat specific situations differently without a general, neutral reason for doing so. As Professor Wechsler once explained, "the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved."
Read and Kirby also agree that a decision for Read based on general principles will necessarily affect others in the direct sales industry as well as all who employ independent contractors. At oral argument Read's counsel acknowledged that, for example, the real estate sales industry would be impacted by this case, especially since realtors are often in people's homes. In amicus curiae briefs, newspapers who use independent contractors as distributors, apartment owners who use independent contractors as property managers, and others have warned of the potentially pervasive effects of a ruling in this case on many other activities. Products commonly sold in homes include cosmetics and personal articles (Avon and Mary Kay), home and kitchen wares (Amway and Tupperware), insurance, and encyclopedias.
To compensate Read without subjecting all these various enterprises to increased liability—although Read argues that they are already subject to such liability—the Court concludes that Kirby is different from other employers of independent contractors because it does not merely allow its distributors to conduct in-home demonstrations,
To apply the "retained control" rule to the case before us, three questions must be answered: first, did Kirby retain control of Sena's work so as to be responsible for his dealers' torts? second, did Kirby owe Read a duty to exercise reasonable care to prevent her from being injured by Carter's criminal conduct? and third, was Read's injury caused by Kirby's failure to exercise its retained control with reasonable care? I address each in turn.
Kirby does not select dealers itself, and as a practical matter it could not do so without fundamentally altering the nature of its business. About 700 Kirby distributors employ some 12,000 dealers recruited from more than 50,000 annual applicants. Kirby's distributors, who are like Sena independent contractors, select the dealers. Kirby's contract with Sena plainly provided that Kirby "shall exercise no control over the selection of ... Dealers". Kirby had nothing to do with selecting Carter as a dealer. Practically and contractually, that was entirely Sena's responsibility.
Read argues, however, and the Court concludes that Kirby should have exercised some control over dealer selection because it required its products to be sold through in-home demonstrations. This requirement is too general to constitute a retention of control for liability purposes. For an employer to be liable for an independent contractor's actions, the employer must have retained not merely a "general right of control over operations" but control of "`the details of the work to be performed'".
Kirby exercised no such control over its distributors. With respect to dealer selection, it contractually eschewed any right of such control. Kirby's contractual requirement that its products be sold through inhome demonstrations merely defined the
An employer is not liable for an independent contractor's misconduct merely because the employer knows of risk inherent in the assigned work. In Golden Spread Council, Inc. v. Akins
I cannot discern a principled reason for excusing BSA from any responsibility for sexual assaults by persons selected by its independent volunteer councils and not excusing Kirby from the same responsibility for its independent contractors' independent contractors. Each created an organization in which the risk of misconduct inhered. The Court imposed no duty on BSA, and none should be imposed on Kirby.
As already noted, Kirby owed Read a duty of reasonable care to prevent a dealer from sexually assaulting her only if it realized or should have realized the likelihood that it had created a situation in which such a tragedy might occur.
In Greater Houston Transportation Co. v. Phillips
Kirby has conducted its business for over eighty years, more than four times as long as the Yellow Cab Company in Houston. Its 12,000 dealers make about 1.5 million in-home demonstrations annually, or 1,500 times the number of traffic accidents involving Yellow cabs in Houston. Kirby and the Yellow Cab Company in Houston have had the same number of incidents of criminal conduct: two. For Kirby, one was in North Dakota in 1983,
More generally, there is no evidence in this record that door-to-door salesmen are more likely to sexually assault their customers than any other salesmen. The Direct Selling Association, as amicus curiae, cites statistics showing that many customers are acquainted with their direct sellers, either personally or through referrals. Such statistics are not surprising, since one might well surmise that most customers would be far more reluctant to admit strangers into their homes than they would be to approach strangers in the sales department of a store. But we need not go outside the record. The point is that there is nothing at all in the evidence before us to show whether the risk of sexual assaults in home sales organizations is greater than in other sales contexts.
A third party's criminal conduct need not be probable before a person may have a duty to protect others from it, but the infrequency of such conduct is a factor that must be considered in determining whether it was foreseeable. Several months ago, in Timberwalk Apartments, Partners, Inc. v. Cain,
The third question is whether Read's injury was caused by Kirby's failure to exercise its retained control with reasonable care. Read argues repeatedly that all Kirby should have done differently was contractually obligate its distributors to conduct criminal background checks of all potential dealers. Read does not even contend that Kirby should monitor or enforce the obligation. Read's counsel was quite clear on the subject at oral argument:
If Kirby's only duty was to add one sentence to its distributor agreements requiring them to check the backgrounds of potential dealers, without conducting any checks itself or monitoring the distributors operations for compliance, I fail to see how the breach of so ineffectual a duty could possibly have resulted in Read's injury. Moreover, under settled law, Kirby's distributors already had a duty imposed by law to use reasonable care in selecting dealers.
Recognizing the plain flaws in Read's position, the Court does not endorse it, writing only that Kirby had a duty to "act reasonably"—whatever that means.
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.
Under settled law, Read can obtain compensation for her injury from Carter and Sena only. Because the Court reaches a contrary result, I respectfully dissent.
Justice ABBOTT, joined by Justice OWEN, dissenting.
Kirby retained control over where the work was to be performed, not over who
I agree with the Court's analysis of Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985), that "a general contractor, like Kirby, has a duty to exercise reasonably the control it retains over the independent contractor's work." 990 S.W.2d at 735. I also agree with the Court's synopsis of Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993), that in determining whether a duty exists in a retained-control case, the "focus is on whether [the] retained control was specifically related to [the] alleged injury." 990 S.W.2d at 736. I disagree with the Court's application of this law to the relevant facts of this case.
As noted, Kirby's Distributor Agreement and Independent Dealer Agreement collectively require dealers to sell vacuum cleaners in the homes of potential customers. Kirby's contract with its distributors also provides that Kirby "shall exercise no control over the selection of ... Dealers. The full cost and responsibility for recruiting, hiring, firing, terminating and compensating independent contractors and employees of Distributor shall be borne by Distributor."
Ms. Read claims that her injury is related to the selection of Carter as a dealer without a background check. This injury is specifically related to the control that Kirby abrogated—control over the selection of dealers. In essence, the Court rewrites Kirby's Distributor Agreement and Independent Dealer Agreement to require Kirby to assume control over dealer selection. Because the injury is not related to the control retained by Kirby, the Tidwell test is not met and Kirby owed no duty to Ms. Read under the circumstances of this case.