The Texas Supreme Court has reversed 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. 23-0704; May 9, 2025) 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.
The court of appeals split in three directions. The lead opinion concluded that Seward’s summary judgment dismissal was improper because a fact issue existed as to whether he was acting in his public or private capacity. The dissent would have held that Seward’s conduct was entirely within the scope of his police-officer employment, which also got Point 2 Point and Home Depot off the hook to the extent that Plaintiff’s claims were based on Seward’s conduct. As to Home Depot, the court of appeals held that fact issues precluded summary judgment. Home Depot filed a separate petition for review arguing that the “the public-safety officer’s rule” should be adopted and applied to this case, that a retailer has no duty of warn responding officers that a detained suspect has not been searched when it is unknown that the suspect possessed a concealed weapon, and that it was not vicarously liable for Seward’s conduct. SCOTX granted review.
In an opinion by Justice Devine, SCOTX reversed. First, the Court addressed whether Seward had immunity under § 101.106(f), CPRC (Tort Claims Act). That section permits a governmental employee to move to dismiss a suit that is “considered to be against the employee in the employee’s official capacity only.” The conduct at issue must be within the general scope of the employee’s employment, and the claim must be one that could have been brought against the governmental unit. The Court concluded that Seward acted in the general scope of his authority as a police officer because police officers have a 24/7 duty “to stop crime whenever it occurs.” This goes for peace officers who take off-duty security work, though “a fact question may arise as to whether the officer’s conduct is in a private or official capacity” (citation omitted). In this case, the Court determined that Seward was responding to a reasonable suspicion of a theft in progress when he encountered Juarez and that the Code of Criminal Procedure demanded that he respond whether on or off duty.
Here Seward acquired “specific articulable facts that Juarez had suspiciously concealed store items . . . in an area no reasonable person would take merchandise.” He thus “objectively” had suspicion that “a special offense against property was afoot.” He thus followed DPD procedures, which involved issuing a criminal trespass warning. Plaintiffs argued that Seward was taking orders from Home Depot, but the Court concluded that “‘grave public-policy concerns would be implicated’ because this would imply ‘that peace officers can contractually avoid their oaths of office.’” As long as the officer’s conduct “serves a purpose of the [governmental] employer,” a private employer’s “co-existing motivations do not remove an employee’s actions from the scope of his [governmental] employment . . .” Plaintiffs failed to raise a fact issue that Seward committed “some other alleged negligent conduct before the warrant check [that] was not ‘in or about the performance’ of Seward’s duty as a peace officer.” The trial court properly granted summary judgment on this issue.
Turning to the “public-safety officer’s rule,” the Court noted that adoption of the raised a matter of first impression. The Court ruled that “public policy supports the rule’s adoption, [and] we apply it here.” Justice Devine recounted the historical background of the rule, which emerged in the late nineteenth century as a species of premises liability. In 1996, the Court did not reach the issue in a case, although Justices Gonzalez and Abbott wrote separately encouraging adoption of the rule. The Court decided to adopt the rule based on three considerations: (1) “the rule encourages the public to promptly call for assistance from public-safety officers when needed, without hesitation or fear of liability”; (2) “the rule promotes public trust by minimizing” the potential for discrimination, questions about the integrity of police or fire investigations; and (3) “cynicism when officers come to the public’s aid but then sue those whom they served for ordinary acts of negligence.” The Court selected the most formulation of the rule in the Restatement (Third) of Torts, which provides that “[a]n actor who innocently or negligently creates a peril that occasions the presence of a public-safety officer owes no duty to that officer when the officer is injured by the very same peril . . . and the officer is injured while (1) on duty, (2) acting within the scope of employment, and (3) engaged in the performance of emergency activities.”
The Court noted that the rule does not “absolve conduct more culpable than negligence,” “shield tortious conduct that is independent of or distinct from the conduct that occasioned the public-safety officer’s presence,” or “apply to tortious conduct that occurs after the officer arrives at the scene, including the violation of any duty to warn the officer.” That duty to warn, stated the Court, is the duty owed to a licensee, which is “to use ordinary care to warn of a dangerous condition of which the owner or occupier is aware and the officer is not.” Applying the rule to this case, the Court absolved Home Depot of liability. The responding officers knew what they were doing and “were engaged in the performance of emergency activities when they were injured.” There was no evidence that Home Depot’s employee (Painter) knew Juarez had a concealed gun or made any misrepresentations “on which the responding officers could rely to conclude that Juarez otherwise had been adequately searched.” There was thus no duty to warn under these facts. The Court reversed the court of appeals’ judgment and reinstated the trial court’s judgment.
Justice Busby, joined by Justice Lehrmann, concurred. He pointed out that the Court’s decision does not answer the question of “whether this case allows [Texas businesses] to immunize themselves from liability for the [security] guard’s torts within the scope of employment by hiring an off-duty police officer to perform that function.” The parties didn’t ask for an answer to that question nor was the Court obliged to give one. Justice Busby, however, walked through approaches taken by other courts, finding significant differences of opinion. He analyzed the Tennessee Supreme Court’s holding in White v. Revco Discount Drug Centers, 33 S.W.3d 713 (Tenn. 2000), which discusses the majority view, which takes a “nature of the conduct” approach to the private employer’s vicarious liability, as well the minority view, which immunizes employers if they hire off-duty police officers. The Tennessee Court settled on an application of the “dual master doctrine” from agency law, holding that “agency law promotes public policy interests by ensuring that ‘[e]mployers who assume the benefits of employing off-duty officers must also assume the corresponding risk of harm for acts committed by such security guards within the scope of their employment.”
This was obviously a very difficult case from a factual point of view, and we applaud the Court for treating it with the sensitivity and care that it demands. It reminds us once more that the people who don the black robes don’t have easy jobs and we should not only appreciate that but do everything we can that we get and keep the best possible lawyers and human beings to make the tough decisions.
