Apologies are in order for yesterday’s posting on U. S. District Court nominee Priscilla Owens. Or as politicians are prone to say: “Mistakes were made.” I made them. I suppose I could have gotten it more wrong, but I surely didn’t get much of the story right. My thanks to a fellow blogger at Kiva.com who understands the law a lot better than I do. Here is the complete Kiva comment, which should set the record straight:
Justice Raul A. Gonzalez, a very conservative Democrat, wrote the Read opinion. Justice Alberto R. Gonzalez, who is now U.S. AG, was not on the Court in 1998. It is confusing, I realize. The Texas Supreme Court has had only two Hispanic members, and both of them have been named Gonzalez.
In Read, the opinion by Justice Raul Gonzalez, was joined by 5 other members of the court. There were two dissents. One by Justice Hecht, whose opinion was that the court overreached because of the horrible facts of the case. Justice Hecht wrote:
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.”
The other dissent, by Justice Abbott, who is the current Texas Attorney General, concluded that the court sympathetically misapplied the facts of the case to settled law. Justice Abbott wrote:
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.
Justice Owens did not write an opinion in Read. She did, however, join in both dissents.
In my view, there is nothing remotely novel about the Read holding. The disagreement of the court centered on the application of awful facts to settled Texas law.
Moving Along
Thanks again to Kiva.com for straightening this out. Eating crow isn’t half bad, as long as you bury it in the sauce…
