Wendy Davis has her weaknesses as a political candidate but one thing she has shown truly exceptional skill at throughout her life is bilking gullible liberals out of their money – beginning with her ex-husband and ending with Democrat donors across the country. As a result she has a ton of money to throw around against Greg Abbot, but not a lot of useful stuff to do with it. As a consequence she is blanketing the Texas airwaves with an attack ad that strikes just the right balance of tone between ominous, hectoring, and dishonesty.
Let’s unpack the factual claims of this article a little bit. The actual text of the opinion can be found here, and Abbott’s dissent can be found here. The ad does correctly note that, tragically, a woman was raped by a salesman of Kirby vacuum cleaners and that Abbott’s dissent would not have allowed the woman to sue Kirby for failing to perform a background check on the vacuum cleaner salesman. This, however, is where the ad goes off the rails factually by omitting the somewhat salient point that the salesman did not work for Kirby.
According to the facts as stated in both the majority opinion and the dissent, Kirby’s only connection with the case was manufacturing the vacuum cleaners that the salesman in question sold. They then entered into contracts with distributor companies (the company that the rapist worked for) allowing these distributor companies to have rights to sell Kirby vacuums in certain geographical areas. The specific terms of the distributorship agreement stated that Kirby had no control over who the distributor selected as dealers, how they compensated them, or the terms of their employment. In light of this fact, although Abbott held that the distributor company (the rapist’s employer) could be held liable for failing to perform a background check on him, Kirby could not since they retained no control over the selection of the employee in the first place. Per Abbott’s brief and eminently common sense dissent:
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.” ___ S.W.2d at ___. 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.” ___ S.W.2d at ___. 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.
In other words, Abbott did not say, as Abortion Barbie Wendy Davis implies, that the victim was without recourse, but rather that she had merely sued the wrong party. Certainly, someone should have been held responsible for failing to conduct a background check; Abbott did not disagree with this proposition at all. His only contention (a contention that I think most ordinary Americans would agree with) is that the “someone” in question should be the employee’s actual employer.
I had hoped that Wendy Davis, the Democratic candidate for governor in Texas, could rise above negative politics.
Idealist that I am, I’ve believed that more and more women entering races could bring the focus back on the issues where it belongs rather than relying on character assassination and fear-mongering ads.
But “A Texas Story, the first television commercial of the Davis campaign, hit the airwaves Friday. The 60-second spot, run in English and Spanish in multiple markets, is disturbing, complete with ominous music and a foreboding voiceover that begins by describing March 26, 1993, as “a pleasant spring day.” You know something terrible is about to happen.
* * *
On an emotional level, the ad is quite effective, evoking a strong gut reaction against Abbott’s decision: How dare he choose a company’s interests over the rights of a rape victim.
But such a campaign doesn’t seem in keeping with the Wendy Davis in red running shoes who filibustered her way after 13 hours to national publicity and an image as an up-and-coming Democratic star. She made us believe she had guts and grit and determination — and that she was better than the run-of-the-mill politician.
Sadly, it is clear now, even to her supporters, that she isn’t. In fact, she isn’t even as good.
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