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Click here for the full text of this decision FACTS:Perry Jeffery was riding with two others people in a car driven by Samantha Sanchez Ramos. All four were door-to-door vacuum cleaner salespeople, on their way back from a sales call in Hobbs, N.M. The car crashed. The two other passengers were killed. Ramos and Jeffery survived. Jeffery sued several parties, and the survivors of the two deceased passengers intervened. All of the suits settled except the suit between all of the plaintiffs and Robertson Sales & Service Inc., the company through whom Ramos and the others worked, and Scott Fetzer Co., the makers of the Kirby vacuum cleaners the four sold. In their petition, the plaintiffs pleaded vicarious liability and negligence. They said Robertson was responsible for Ramos’ actions because she was an employee acting within the scope or her employment with Robertson. They also alleged that Robertson was negligent in failing to investigate Ramos’ driving record, which included five tickets for speeding or driving at an unsafe speed, in allowing an unsafe driver to transport people to sell Robertson’s products, in promoting business methods that required long hours and night travel, for failing to keep a proper lookout and for failing to warn. Robertson’s summary judgment was based on the argument that there was no evidence that Ramos was an employee of Robertson’s; that Robertson owed a duty to the car’s occupants; or that Robertson had any control over the occupants, who were independent contractors. Robertson also argued that there was no genuine issue of material fact regarding Ramos’ status as an independent contractor, thus Robertson was not negligent because it retained no control over the details of Ramos’ work. The trial court granted summary judgment to Robertson and Scott Fetzer. The plaintiffs appeal the judgment as to Robertson, but not as to Scott Fetzer. HOLDING:Affirmed. The court makes two quick observations. First, that Robertson’s motion adequately asserted the no-evidence grounds upon which it relied. Second, that the plaintiffs admitted in their response to the summary judgment motion that all four people in the car were independent contractors and not Robertson employees. The court concludes that summary judgment was proper on the vicarious liability cause of action because there was no evidence that Ramos was Robertson’s employee. The court next examines whether there was any evidence that Robertson owed Jeffery and the plaintiffs a duty, or whether Robertson proved as a matter of law that it owed no duty. The plaintiffs insist that Robertson controlled the details of Ramos’ work, and that Robertson had a duty to investigate Ramos’ driving history. The court dissects the relationship between Ramos and Robertson, noting that Robertson owned the vacuums and paid Ramos a commission for each sale. Though Robertson sometimes set appointments or gave Ramos leads, it was up to Ramos whether or not to follow those leads. She set her own hours, her own appointments and decided when, where and how she was going to conduct her sales calls. Though Robertson did once advance Ramos money to get out of jail for failing to appear in a traffic ticket case, there is no evidence that Robertson was aware of Ramos’ other driving infractions. The court acknowledges that the requirement that Robertson’s demand that sales demonstrations be conducted in customers’ homes does show an element of control over Ramos’ work, that exercise of control did not warrant a finding that any control was retained over Ramos’ driving or that Robertson had a duty to investigate her driving record. “Driving was not included in the performance of Ramos’s contract, and the manner of transportation was her own choice. . . . After viewing the summary judgment evidence in the light most favorable to appellants and disregarding all contrary evidence and inferences, we find that there is no summary judgment evidence indicating that Robertson had any contractual or actual control over Ramos, a dealer counselor, that would create a duty with respect to her driving. Consequently, we hold that the trial court did not err in granting Robertson’s motion for no-evidence summary judgment.” OPINION:McCall, J.; Wright, C.J., and McCall, J. Strange, J., not participating.

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