Here is my letter to The Times‘s David Savage regarding his article yesterday about Priscilla Owen:
Dear Mr. Savage,
I am writing, first and foremost, to praise your article yesterday on Priscilla Owen (“Judge Seen as Conservative, Fair” — May 19.) You wrote accurately about Owen’s dissent in a controversial abortion-rights case — getting facts right that have been reported inaccurately by many mainstream media outlets.
I wish my praise could be without reservation, but unfortunately I believe you misstated Justice Owens’s position on the case about the Kirby vacuum salesman. You said:
“There was the case of Dena Read, a woman who was raped in her home by a Kirby vacuum salesman. The company had not checked his background, which included being fired from a previous job for sex offenses. The woman won a $160,000 jury verdict, and the Texas high court upheld the award on a 6-3 vote.
“Owen dissented, arguing that the salesman was an independent contractor. For that reason, Kirby should not be held liable, she said.”
Owen wrote no opinions in the case, but joined two dissenting opinions, neither of which argued that Kirby was not liable because the rapist salesman was an independent contractor, as your article states. Rather, the dissenters argued that Kirby was not liable because the rapist salesman had been employed, not by Kirby, but by a distributor who was himself an independent contractor.
Kirby’s contract with its distributor specified that Kirby had no control over whom its distributors hired as salesmen. If Kirby couldn’t control who the distributor hired, the dissenters argued, then Kirby should not be held liable for failing to check the salesman’s background — only the distributor should. If the key question had been the salesman’s status as an independent contractor, as your article claimed, the dissenters would not have agreed that the distributor who had hired the rapist was indeed liable for failing to check the rapist’s background. But the dissenters did agree. As one of the dissents stated: “No one questions that under these rules, [the distributor] is liable to [the victim] for failing to use reasonable care in selecting [the rapist salesman] as a competent dealer, as the jury found.”
I think this merits a correction, and I am accordingly copying Jamie Gold on this e-mail. But I don’t want this minor criticism to overshadow my praise for what was on balance a fair article, and my main point in writing you is to praise you for getting it right on the parental notification issue, where so many others have gotten it wrong.
I really wish I could have given unreserved praise, but I have come to conclude that the inaccuracy is serious enough that it merits correction. Still, I think Savage did a nice job on the piece, as I discussed here. I hope that comes across in my e-mail.