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Johnson v. Scott Fetzer Co.11/13/2003
I. Introduction
Appellant Rheba Johnson ("Johnson") sued Appellee Scott Fetzer Company d/b/a Kirby ("Kirby") and Carmello Rodriguez ("Rodriguez"), asserting claims for sexual harassment, negligence, assault, battery, and intentional infliction of emotional distress. The case proceeded to trial before a jury, and at the close of Johnson's case-in-chief, the trial court directed a verdict for Kirby. The jury returned a verdict, and the trial court later rendered judgment for Johnson and against Rodriguez. Rodriguez has not appealed the judgment against him.
Johnson, however, appeals the trial court's directed verdict for Kirby. She claims that the trial court erred by granting the directed verdict on her sexual harassment claims because some evidence exists that she was an employee of Kirby and that the evidence supports the jury's finding that she was subjected to unlawful sexual harassment. She also claims that the trial court erred by granting a directed verdict for Kirby on her assault, battery, and intentional infliction of emotional distress claims because Rodriguez was a vice-principal of Kirby, rendering Kirby vicariously liable for Rodriguez's torts. Finally, Johnson claims that the trial court erred by granting a directed verdict for Kirby on her negligence claims because some evidence exists that Kirby maintained control over sexual harassment training and reporting concerning its area distributors and that Kirby exercised that control negligently, proximately causing her injuries and damages. We will affirm.
II. Factual and Procedural Background
Kirby manufactures home cleaning systems and accessories, including Kirby vacuums, which are marketed to consumers solely through in-home demonstrations. Kirby enters into distributor agreements with distributors, who are then authorized to purchase products from Kirby and market them. The distributors usually accomplish their in-home sales demonstrations by hiring people to act as dealers for them. Concerning the sales demonstrations and the dealers who perform them, the Kirby distributor agreement provides:
3. Exclusively Consumer End-User Sales. . . . ll Kirby Systems purchased by Distributor hereunder are purchased solely and exclusively for resale by in person demonstration to consumer end-users pursuant to [Kirby's] marketing system, unless [Kirby] otherwise expressly authorizes in writing. Distributor further agrees to use his best efforts to conduct the in person demonstration in the home of the consumer end-user.
A violation of the "Exclusively Consumer End-User Sales" provision will likely result in [Kirby] terminating this Agreement . . . and/or taking any other action which it believes appropriate under the circumstances.
7(d) Quotas. Distributor shall maintain at least the recommended number of active full and part-time sales personnel and shall adequately solicit and service its Area by meeting its sales frequency ratios as same may be specified by [Kirby] from time to time, or as established in policy statements which may be issued or revised from time to time by [Kirby], as the minimum requirements for distributors generally, or as may be established by [Kirby] specifically for Distributor.
Ralph J. Paul, Jr. ("Paul") was a distributor for Kirby. Paul enlisted Rodriguez to start a separate Kirby distributorship. Kirby approved Rodriguez's area distributorship, and in March 1997, Rodriguez hired Johnson to be one of his dealers and to perform in-home demonstrations of the Kirby cleaning systems in Weatherford, Texas. While Johnson worked with Rodriguez, Rodriguez subjected her to repeated sexual harassment, including unwanted physical
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