Employee Background Checks

Texas Supreme Court Finds The Kirby Company
Negligent For Not Checking Salesman's Background

The Texas Supreme Court has sided with a woman who sued The Kirby Vacuum Cleaner Company because she said she was raped by a door-to-door salesman for the company.

The divided court ruled that the Kirby Co. should have required its distributor to do a background check before hiring salesman Mickey Carter, which would have revealed previous complaints of sexual misconduct.  "I hope this decision will cause Kirby to change it's ways to make sure that criminals are not sent into people's homes to sell Kirby vacuum cleaners," the rape victim said in a statement.  "I also hope that it will prevent another woman from having to go through what my family and I have been through."

Justice Raul Gonzalez said Kirby's way of doing business - selling its products in customer's homes - poses a potential danger. "Kirby dealers, required to do in-home demonstrations, gain access to homes by virtue of the Kirby name.  A person of ordinary intelligence should anticipate that an unsuitable dealer would pose a risk of harm," he wrote.  The victim told authorities that Carter raped her in her Seguin, Texas home as her children slept in the next room. 

Clark Aspy, Kirby's lawyer, said he had not read the decision but "was disappointed in the outcome." He declined to comment further.  Kirby argued that the distributor that hired Carter as an independent contractor was negligent for failing to check the criminal records of its sales staff.   The company said that it must hire competent distributors but that it is the distributor's duty to hire competent salespeople.

The Court upheld $160,000 in actual damages but agreed with the 3rd District Court of Appeals which threw out $800,000 in punitive damages levied against Kirby.

*Courtesy: Associated Press 01/02/99

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