The Texas Supreme Court has granted a shipper’s petition for writ of mandamus after a trial court denied its Rule 91a motion to dismiss a wrongful death plaintiff’s claim that the shipper negligently hired a federally-regulated carrier to haul its goods.
In re Home Depot (No. 25-0317; May 15, 2026) arose from a collision between a tractor-trailer and a motorcycle that resulted in the death of the rider. His parents sued Werner, the owner and operator of the truck, and later amended their petition to add negligence and gross negligence claims against Home Depot, alleging that it was liable because it contracted with Werner for shipment of goods. Plaintiffs argued that Home Depot “was negligent in entrusting ordinary cargo to Werner because it knew or should have known that Werner hired reckless or incompetent drivers.” Among other things, Plaintiffs alleged that Home Depot should have “independently investigate[d] the fitness of the individual driver who was hauling Home Depot’s goods.” (That’s just plain crazy in our view.) Home Depot filed a Rule 91a motion to dismiss on the basis of no duty. The trial court denied the motion, and the court of appeals did the same. Home Depot sought mandamus relief from SCOTX.
In an opinion by Justice Devine, the Court granted relief. The question, of course, was duty. First, longstanding Texas law holds that “one generally has no duty to control the conduct of another,” except under narrow circumstances, none of which applied here. Werner was an independent contractor, Home Depot “undertook no affirmative acts that created or increased the danger, and nothing about the cargo is alleged to have done so either.” Second, Texas law has long provided that “one who hires an independent contractor is generally not liable for the contractor’s torts,” again subject to narrow exceptions. In this case, Plaintiffs didn’t invoke or plead any facts supporting any of those.
The Court reiterated that it “‘[has] not ruled definitively on the existence, elements, or scope’ of a claim for negligent hiring or retention of either an employee or an independent contractor.” Plaintiffs tried to characterize their cause of action in terms of direct, rather than vicarious, liability, but the Court was having none of it. Even if a negligent hiring action existed, it would require proof of the negligence of both the employer in hiring the contractor and the contractor’s subsequent negligent act or omission. Here Plaintiffs alleged “that Home Depot negligently hired Werner who negligently hired a negligent driver,” or, as the Court put it, a “derivative of derivative liability.”
Even if the Court had been willing to go along with Plaintiff’s argument up to the point of some connection between Home Depot’s affirmative acts that may have somehow increased the risk of an accident, it would still run aground on the shoal of foreseeability. “The facts pleaded here show that any risk to the motoring public existed independently of Home Depot’s shipment and arose only from Werner’s conduct as a motor carrier,” the Court observed. “That matters. If Werenr’s authority to operate as a motor carrier did not come from Home Depot, then Home Depot cannot be said to have ‘put’ trucks on the road in any legally meaningful sense.” Simply hiring a regulated carrier to haul one’s goods didn’t “give rise to a common-law duty of care to the decedent.” Besides, the Court added, does any expect a shipper to do an independent investigation of a federally-regulated carrier already licensed and monitored by the federal government?
The Court granted the petition and instructed the trial court to vacate its order denying Home Depot’s Rule 91a motion and dismiss the claims.
