The Texas Supreme Court has granted review of a Dallas Court of Appeals decision in a case stemming from a fatal shooting at a Dallas-area Home Depot in 2018.
The facts of Chad Seward, Home Depot U.S.A., Inc., and Point 2 Point Global Security, Inc. v. Rogelio Santander Sr. and Julia Garcia, Individually and as Co-Administrators of the Estate of Rogelio Santander Jr., and Crystal Ameida (No. 05-21-00911-CV; No. 24-0704; granted September 27, 2024) are as follows, but it is important to note that the parties dispute some of them. Seward was an off-duty Dallas police officer who also worked for Point 2 Point, a private security company contracted to work at a specific Home Depot store in a high-crime area. On the day of the shooting, Painter, a Home Depot employee, noticed Armando Luis Juarez behaving suspiciously. He notified Seward so he could help issue a criminal-trespass warning. Seward, accompanied by another security guard employed by a different company, met Painter, who was monitoring Juarez’s movements. Seward asked Juarez to come out from behind an insulation display, which Juarez did. As the group walked to the asset protection office, Seward grabbed Juarez’s arm, and Juarez dropped to the ground.
The parties dispute what happened next. Juarez had either pepper spray or mace on his person, which was confiscated at this point by either Painter or the other guard. Seward claimed that he performed a “protective frisk” of Juarez and found no other weapons. Painter, on the other hand, claimed that he never saw Seward do the search. Seward then alleged that at this point he made a call to dispatch to ascertain whether Juarez had a warrant. Painter, however, testified that the call was not made until the group was in the asset protection office. In the event, the warrant came back with a soundalike. Juarez denied he was the person so identified. Seward called for a cover unit be sent to confirm Juarez’s identity. Painter testified that an ID was found in Juarez’s wallet, but Seward and the other guard disagreed. The other guard added that he found a small knife in the wallet.
At this point on-duty officers Rogelio Santander Jr. and Crystal Almeida arrived on the scene. They came into the office, while Seward went out to the car to check Juarez’s identity on the computer. His identify was confirmed, so Seward radioed to the officers to arrest Juarez. Seward also called Painter to ensure the message went through, and Painter then told the officers to arrest Juarez. Juarez asked if he was going to jail. When Painter responded in the affirmative, Juarez pulled a gun and shot Almeida, Santander, and Painter. Santander died from his injuries.
Almeida and Santander’s estate filed wrongful death, survival, and personal injury claims, alleging negligence and negligent undertaking against Seward and negligence, negligent undertaking, negligent training and supervision, and vicarous liability for the conduct of Seward and the other guard against Point 2 Point and Home Depot. The trial court dismissed Plaintiffs’ claims against Seward and granted summary judgment in favor of Point 2 Point and Home Depot. Plaintiffs appealed.
In an opinion by Justice Garcia, the court of appeals affirmed in part and reversed in part. Regarding the claims against Seward, the court determined that Seward went “on-duty” when he made the radio call, thus invoking governmental immunity under § 101.106(f), CPRC. Prior to the radio call, however, the court rulede that a genuine fact issue existed as to whether Seward was acting in the scope of governmental employment or as an employee of a private entity. The court thus reversed the trial court as Seward’s actions prior to the radio call. Similarly, the court ruled that a fact issue existed as to whether Seward was acting as an on-duty officer with governmental immunity prior to the radio call. Upon determination of this fact hinges the question of whether Seward’s employer, Point 2 Point, may be held liable for Seward’s actions, since a private employer cannot be held liable for an off-duty officer’s conduct if the offer was acting as an on-duty officer. The court sent that issue back to the trial court.
As to Home Depot’s vicarious liability, the court of appeals reversed and remanded as to Seward’s actions prior to the radio call. The court stated that Plaintiffs’ claims against Home Depot did not sound in premises liability but in negligence, since the disputed issue was whether Seward acted negligently prior to the radio call. Home Depot further asserted the Firefighter’s Rule, which states that under certain circumstances firefighters and police officers are considered licensees for premises-liability purposes. The court of appeals disagreed, holding that a fact issue existed as to whether Home Depot was aware of a dangerous condition and failed to warn the officers. This finding, in turn, hinges on whether Painter was aware of the dangerous condition created by Juarez and failed to warn the officers.
Turning to Plaintiffs’ negligent undertaking claim against Home Depot, the court of appeals concluded that a fact issue exists as to whether Home Depot exercised reasonable care in ensuring the safety of its premises by contracting with a private security firm. Home Depot argued further that Seward’s on-duty conduct was an intervening and superseding cause of the shootings. The court rejected this argument on the basis that since Home Depot retained the security firm that employed Seward, it could not also contend that Seward acted independently.
Justice Rosenberg dissented. He would have found that Seward met his burden to establish that his conduct was in his scope of employment as a police officer. Specifically, Seward’s conduct prior to using the police radio also served the interests of the police department, thus satisfying the test for governmental immunity enunciated in Garza v. Harrison, 574 S.W.3d 389 (Tex. 2019) (holding that “[c]onduct falls outside the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purposes of the [police department] employer”). According to Justice Rosenberg, the majority applied the Garza holding too narrowly and should have upheld the trial court’s dismissal of Seward from the case.
Justice Carlyle concurred in and dissented from the opinion. First, he observed the lack of legal authority cited by the majority to support the conclusion that Seward’s call to check warrants on Juarez constituted a “return to duty.” He also disagreed with the majority’s analysis of the Garza decision and would have found that Seward was acting on behalf of Point 2 Point and Home Depot all along, specifically “protecting a private employer’s property, ejecting trespassers, or enforcing rules or regulations promulgated by the private employer” (quoting Garza at 403).
SCOTX has scheduled oral argument on December 5.
TCJL Intern Geneva Cline provided the research and substantially drafted this article.
