SW Legal Educational Publishing

Producer Liable for Tort of Independent Contractor Sales Representative
Description Kirby vacuum held liable in negligence for rape of customer by independent contractor selling vacuums in customer's home. Since producer specified method of sales, it retained sufficient control to be liable in tort for not checking the background of sales representative.
Topic Business Organization
Key Words Independent Contractors; Negligence
C A S E   S U M M A R Y
Facts Kirby sells vacuum cleaners by independent distributors that use door-to-door sales forces. The Kirby distributor in San Antonio hired Carter as a sales representative, but failed to check his background, which would have revealed a pattern of inappropriate sexual behavior in employment. Soon after being hired, Carter sexually assaulted a customer at her home. She sued Kirby for negligence and was awarded $160,000 compensatory damages and $800,000 punitive damages. The appeals court upheld the compensatory damages but reversed the punitive damages. That decision was appealed to the Texas high court.
Decision Affirmed. "A company that markets and sells its products through independent contractor distributors and exercises control by requiring in-home demonstration and sales, owes a duty to act reasonably in the exercise of that control." The fact that the San Antonio distributor and Carter are both independent contractors by terms of agreement does not remove the fact that Kirby retained control over the method of in-home sales.
Citation Read v. Scott Fetzer Co., 42 Tex. Sup. Ct. J. 264 (Sup. Ct., Tx., 1998)

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