The Texas Supreme Court has reversed a Houston [14th] Court of Appeals decision holding that the TCPA does not apply to a negligent hiring, training, and supervision claim.
Walgreens v. Pamela McKenzie (No. 23-0955; May 16, 2025) arose from an incident at a Houston Walgreens store that took place in 2019. Plaintiff was shopping when she was detained on suspicion of shoplifting. A Walgreens employee called the police, believing that Plaintiff was the same person who had stolen from the store earlier in the day. After the police reviewed the surveillance video, they determined that Plaintiff was not the thief and released her. She sued Walgreens for intentional infliction of emotional distress, negligence, gross negligence, respondeat superior liability, and employee negligence, as well as negligent hiring, training, and supervision. Walgreens moved to dismiss under the TCPA on the basis that Plaintiff’s lawsuit was based on the employee’s report to the police, which it asserted constituted “a communication made in connection with a matter of public concern” under § 27.001(3), CPRC. The trial court denied the motion, and a split Houston [14th] Court of Appeals affirmed in part and reversed in part. The court of appeals affirmed only on Plaintiff’s negligent hiring claim, which it concluded was not based “entirely” on Walgreens’ employee’s exercise of his First Amendment rights in calling the police. Walgreens sought review.
In an opinion by Justice Busby, SCOTX reversed and rendered judgment for Walgreens. The only issues were whether the TCPA applied and, if it did, whether Plaintiff made the requisite prima facie showing on each element of the claim. Justice Busby reiterated that SCOTX has never “ruled definitively on the existence, elements, or scope of a[] [negligent hiring, training, and supervision claim.” If such a claim existed, he went on, it “would require proof of the employer’s negligent in hiring, training, and supervising the employee as well as the employee’s subsequent negligent act or omission, both of which must proximately cause the injury” (citations omitted). Walgreens argued that the negligent hiring claim was no different than the other claims that were dismissed and should get the same treatment.
Justice Busby’s analysis commenced with the 2019 TCPA amendments, which “narrow[ed] the required nexus between the action and the protected activity by deleting the broadest connective language—‘relates to’—and authorizing a dismissal motion only when the action is ‘based on or is in response to’ the activity’” (citations omitted). As this is the first case that has reached the Court in which this particular change of the statute is at issue, Justice Busby reviewed three intermediate appellate court decisions, each of which used different terminology to parse the statutory language. He then turned to the Court’s interpretation of Chapter 95, CPRC, which applies to “a claim for damages caused by negligence” that “arises from the … use of an improvement to real property” (§§ 95.001, 95.002). In each of these situations, Justice Busby noted, the plain meaning definitions compelled the courts to require the movant’s exercise of a protected right constitute the “gravaman” of the claim, be “factually predicated on” the exercise, be a “main ingredient” or “fundamental part” of the claim, or, in the Chapter 95 context, “depend” on the protected activity.
The Court ruled that the court of appeals erred when it “construed the TCPA to apply when protected activity is the only ingredient or only part of the legal action, the legal action is solely dependent on proof of protected activity, or the legal action is instituted solely in reaction to protected activity.” The statute doesn’t say that. To make out a negligent hiring claim (again, if one exists), Plaintiff had to prove “both (1) the employer’s negligence in hiring, training, or supervising the employee and (2) the employee’s subsequent tortious act or omission.” The court of appeals should thus have applied the TCPA to both parts of the theory. Plaintiff alleged two tortious acts: being accused of a crime in front of other patrons and wrongful deprivation of her freedom. Both were made “in connection with a matter of public concern,” implicating the employee’s First Amendment speech rights. Additionally, Plaintiff’s claim was both “based on” and “in response to” the employee’s protected activity.
So did Plaintiff establish a prima facie case of negligent hiring? The Court answered no. Plaintiff adduced no evidence relating to the employee’s hiring, training, supervision, or retention, no evidence of a standard of care or how Walgreens’ conduct breached the standard, or how any alleged breach proximately caused the events. Plaintiff tried to revive her intentional infliction of emotional distress claim, but the Court rejected the attempt because Plaintiff didn’t file a petition for review on that issue and, in any event, the court of appeals concluded that none of Walgreens’ actions “constituted extreme and outrageous conduct as necessary to support” an intentional infliction claim.
This decision is undoubtedly the correct one based on the language of the statute. As long as at least one of the alleged tortious acts supporting a negligent hiring is based on or in response to the defendant’s exercise of a protected right, the TCPA applies. Beyond the TCPA issue itself, we find this opinion interesting for another reason. The Court did not recognize a common law cause of action for negligent hiring, training, and supervision. While it stated that if such a claim exists, it has to link the employer’s allegedly negligent conduct with the employee’s tortious acts and includes a foreseeability element attached to that conduct. In our view, negligent hiring, although it seems to be pleaded in just about every case involving a business’s employee, has the same problem as intentional infliction of emotional distress. It’s a catch-all theory with nebulous standards that sounds impressive but has little content (perhaps that’s why it’s so useful for reptile theory tactics in commercial trucking cases). We hope that some day SCOTX gets the right case upon which to opine about whether this claim exists and, if it does, what it is supposed to mean.
