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 Almeida

Supreme Court of Texas

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No. 23-0704

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Chad Seward, Home Depot U.S.A., Inc., and

Point 2 Point Global Security, Inc.,

Petitioners,

v.

Rogelio Santander Sr. and Julia Garcia, Individually and as

Co-Administrators of the Estate of Rogelio Santander Jr., and

Crystal Almeida,

Respondents

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fifth District of Texas

═══════════════════════════════════════

Argued December 5, 2024

JUSTICE DEVINE delivered the opinion of the Court.

JUSTICE BUSBY filed a concurring opinion, in which Justice

Lehrmann joined.

This wrongful-death, survival, and personal-injury action arises

out of the harrowing shooting of two police officers at a retail store. A

detained suspected shoplifter with an outstanding arrest warrant killed

one officer and injured the other when they attempted to arrest him at

the request of an off-duty officer employed as the retailer’s security

guard. The decedent’s parents and the injured officer sued those

involved, including the security guard and the retailer. On appeal, we

are presented with two main issues: (1) whether the security guard’s

conduct leading up to the shooting was within the scope of his

employment as a police officer, entitling him to dismissal of the suit

against him under the Tort Claims Act; 1 and (2) whether we should

adopt a common-law rule that limits the duties owed to responding

public-safety officers.

We answer yes to both questions. First, when a police officer has

reasonable suspicion that a person in his presence is about to commit or

is in the process of committing theft, as here, he has a statutory duty to

interfere to prevent the crime, even when off duty and in private

employment. 2 And conduct that is objectively “in or about the

performance” of that duty is within the scope of the officer’s

governmental employment. 3 Second, consistent with public policy, we

join a majority of jurisdictions in adopting the public-safety officer’s rule,

which restricts the duties owed to officers who are injured by the alleged

negligence that necessitated their response. 4 Among other policy

1 See TEX. CIV. PRAC. & REM. CODE § 101.106(f); Garza v. Harrison, 574

S.W.3d 389, 393-94 (Tex. 2019) (“[Section 101.106(f)] effectively mandate[s]

that only a governmental unit can be sued for a governmental employee’s

work-related tortious conduct.”).

2 TEX. CODE CRIM. PROC. art. 6.06; Garza, 574 S.W.3d at 403.

3 TEX. CIV. PRAC. & REM. CODE § 101.001(5).

4See infra note 90. Originally known as the “fireman’s rule” or

“firefighter’s rule,” jurisdictions also refer to the doctrine or a variant of it as

2

considerations, the rule encourages the public to call public-safety

officers, without hesitation or fear of liability, to address risks that are

best dealt with by those who have the proper training, skills, and

expertise. Applying these holdings, we reverse the court of appeals’

judgment and reinstate the trial court’s judgment dismissing the claims

against the security guard and granting summary judgment in favor of

the other defendants.

I. Background

On April 24, 2018, Dallas Police Officer Chad Seward was

working as a security guard in police uniform at a Home Depot store in

Dallas. Home Depot had contracted with the private security vendor

Point 2 Point Global Security, Inc. to provide officers, such as Seward,

for security-guard work. The Dallas Police Department approved

Seward’s off-duty work, and under its general orders, officers

“performing off-duty security . . . are subject to the same on-duty rules

and regulations” as if “they were performing on-duty service.” 5 Those

rules require that they “take immediate action to protect life and

property” and “respond to crimes in progress,” consistent with statutory

obligations. 6 But off-duty officers shall not (1) “[e]nforce company

the “professional rescuers doctrine” or “public-safety officer’s rule.” Ellinwood

v. Cohen, 87 A.3d 1054, 1058 & n.4 (R.I. 2014). Although the parties here refer

to the “firefighter’s rule,” the moniker “public-safety officer’s rule” best

encapsulates the rule we adopt today, and we use that nomenclature

throughout the opinion.

5 DALL. POLICE DEP’T, General Order: Off-Duty Employment

§ 421.03(J)(2) (2014).

6 Id. § 421.03(A)(1); see TEX. CODE CRIM. PROC. art. 6.06.

3

policies or house rules unless the enforcement would constitute a law

enforcement activity,” (2) “[r]emain present” when a “private individual

is conducting either a civil or criminal investigation,” or (3) “[a]ssist in

an investigation” by a “private individual.” 7

While monitoring the front of the store, Seward received a

cellphone call from Scott Painter, a Home Depot asset-protection

specialist. Painter described a customer who he believed was

shoplifting. The suspect was suspiciously concealing store items inside

a Home Depot bucket with the lid on it and ostensibly “getting ready to

take it somewhere to steal it.” 8 Seward trusted Painter as reliable and

could see the suspect, Armando Juarez, walking around with the bucket.

Juarez next went into a back section of the store with “a big gap

of empty space behind the insulation” and started taking items out of

the bucket. But he then “concealed himself behind the insulation.”

Having “lost visual” before Juarez left the store, Painter could not

apprehend him for shoplifting under Home Depot’s policy. 9 So he told

Seward, “I’ve got this guy. He’s in the process right now of stealing. It’s

$30 worth of stuff. . . . All I want to do is give this guy a criminal

7 DALL. POLICE DEP’T, supra note 5, § 421.03(J)(1).

8 Painter later explained that contractors normally just need the bucket

and do not take the lids. The suspect, however, “quickly grabbed three

painters’ shirts,” another small item, and a carpentry knife and “put them

inside of the bucket” with the lid on “to close the bucket,” which was “very

unnormal behavior” and “[i]ndicative of an intent to shoplift.”

9 A Multi-Store Asset Protection Manager explained that Home Depot’s

policy requires personnel, before stopping a suspect, to (1) observe the suspect

select and conceal the merchandise, (2) maintain “constant observation,” and

(3) wait until the suspect had passed “the last point of sale or [is] exiting the

store.”

4

trespass [warning], we’ll take—let him go and get the—the products will

be recovered.” A criminal-trespass warning is a statutorily authorized

means for an owner to prevent an unwanted person from remaining on

the property. 10

Seward replied he was on his way, recognizing that Juarez had

“brought merchandise into an area that no reasonable person

would . . . take merchandise” and that Painter wanted him to give the

warning “before [Juarez] had a chance to actually commit the theft that

[Painter] suspected him of doing.” 11 When Seward arrived at the back,

he was joined by Elijah Lateef, another contract security guard. At that

point, they saw Juarez “hiding inside one of the racks by the insulation”

and asked what he was doing there. He replied that he was trying to

scare his girlfriend and emerged without the bucket, which either Lateef

or Painter subsequently secured. Painter then told Juarez to come to

his office so they could issue the criminal-trespass warning and “you’ll

be on your way.”

10 See TEX. PENAL CODE § 30.05. Remaining on the property after

receiving the warning is a misdemeanor offense. Id. § 30.05(d). Although a

warning may be given by “the owner or someone with apparent authority to

act for the owner,” id. § 30.05(b)(2)(A), Painter thought he “would have to have

police involved to be able to issue” one. Under the police department’s

procedures, an officer who “witness[es] the owner or representative of a

property tell a person to leave the property” must “document a Criminal

Trespass Warning” and “make an arrest if after being told to leave the

property, the suspect refuses to do so.” DALL. POLICE DEP’T, Standard

Operating Procedure: Criminal Trespass § 1512(B) (2010). Documentation

requires completing a report with identifying information and checking for any

outstanding warrants. Id. § 1512(C).

11Seward explained that “[i]f you remove [the information] I was

conveyed” by Painter, “I didn’t see [Juarez] do anything that would tell me he

committed a crime. I was only acting on what I was being told by Painter.”

5

As they were walking, Seward grabbed Juarez’s arm, exclaiming

to the others that there is “Mace on his belt loop,” and Juarez fell to his

knees and ultimately into a fetal position. Juarez was asked if he had

anything in his pockets, and when he responded affirmatively, the can

of mace and his wallet were confiscated. Juarez then gave Seward

permission to go through his wallet, which contained a thin card-shaped

piece of metal with a blade diagonally across it. The mace, the blade,

and the fact that they were “going to an area where we’re going to be

confined” prompted Seward to conduct a protective frisk. But because

he was not arresting Juarez, Seward frisked only the outer clothing,

feeling “unidentifiable objects” in the pockets but nothing like a

weapon. 12 However, Painter, who was walking in the front of the group,

testified that he never observed Juarez getting searched.

Seward averred that right after the mace was removed, he did a

warrant check using a name and birth date Juarez had given him.

Although the radio transmission was fuzzy from bad reception in the

store, Seward heard dispatch identifying a “soundalike name” on a

warrant. As a result, he called for a squad car to verify Juarez’s identity

12 The police department’s general orders permit officers to conduct a

nonconsensual protective frisk for officer safety, as authorized by Terry v. Ohio,

392 U.S. 1 (1968). DALL. POLICE DEP’T, General Order: Consensual and

Non-Consensual Search Procedures §§ 330.01(F), .08(B)(8) (2015); see

Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002) (“Law

enforcement personnel may conduct a limited search for weapons of a suspect’s

outer clothing, even in the absence of probable cause, where an officer

reasonably believes that the suspect is armed and dangerous to the officer or

others in the area.”).

6

and the warrant. 13 Because Juarez was “very compliant and

submissive” and Painter was just giving a warning “to deescalate the

situation and calm him down,” Seward saw no need for handcuffs and

informed Juarez that he was not under arrest.

Once at the office, Painter instructed Juarez to sit down. Lateef

left after setting down the bucket and wallet, which contained only a

couple of coins. Seward asked Juarez how he was going to pay for the

items, but he did not respond. Although Lateef and Seward testified

that the wallet contained no identifying information, Painter recollected

that Seward saw Juarez’s identification, called dispatch for a warrant

check, and requested backup all while in the office, not out on the floor.

After being informed that an off-duty officer was requesting

assistance, Officers Rogelio Santander Jr. and Crystal Almeida were

dispatched to the store. En route, they ran a warrant check with

Juarez’s name, which came up positive with a photo. On arriving,

Almeida asked, “Hey, what did this guy do? He has a warrant.” Seward

replied “Okay” and requested their car keys to verify the warrant, which

the officers provided with no other communication. By then, Almeida

noticed that Juarez was unrestrained. But she chose not to handcuff

13 See DALL. POLICE DEP’T, General Order: Arrests Requiring Special

Handling § 315.02 (2017) (noting that a “hit indicat[ing] a warrant has been

issued” is “alone not probable cause” and that “sufficient identifiers” should be

compared to verify that the warrant names the same person in the officer’s

custody). Seward stated that even if Juarez was not that person, the squad

car’s computer would still be needed to issue the criminal-trespass warning

“that entails writing a report,” consistent with the police department’s

procedure. See DALL. POLICE DEP’T, supra note 10, § 1512(C).

7

him even though there was a possible warrant. Meanwhile, Painter did

paperwork without talking to the officers.

At the patrol car, Seward saw Juarez’s warrant information and

matching picture. Because he was having radio transmission issues in

the store, Seward called Painter and told him to let the officers know to

“hook [Juarez] up, arrest him.” When Painter relayed the message,

Juarez asked, “So I’m going to jail?” Painter responded “yes.” As

Almeida moved towards Juarez, he stood up, pulled a gun from his right

pocket, and shot both officers and Painter before running out of the

room. Santander passed away the next morning, Almeida sustained

traumatic brain injury and partial loss of vision and hearing, and

Painter was injured from a bullet going through his nose and into his

shoulder. Juarez ultimately pleaded guilty to capital murder of a peace

officer and received a life sentence without parole.

II. Procedural History

Santander’s parents and Almeida (collectively, the plaintiffs)

sued Seward, Point 2 Point, and Home Depot, seeking recovery for

wrongful death, survival, and personal injuries under various

negligence and vicarious-liability theories. 14 Their live petition focuses

14 The plaintiffs sued Seward for negligence and negligent undertaking

and Point 2 Point and Home Depot for negligence, negligent undertaking,

negligent training and supervision, and vicarious liability based on Seward’s,

Painter’s, and Lateef’s conduct under respondeat superior, joint-venture, and

agency theories. They also sued Juarez, Lateef, and Lateef’s security vendor,

but those claims are not at issue in this appeal. The plaintiffs nonsuited their

claims against Lateef and his vendor, and the trial court severed the remaining

claims from the claims against Juarez. Finally, the plaintiffs do not challenge

the portion of the court of appeals’ judgment that affirmed the summary

8

on (1) Home Depot’s policies that allowed its personnel to confront

suspected shoplifters but prohibited physically searching or handcuffing

detained suspects (a “no touch” policy) and (2) Painter’s and Seward’s

alleged negligence in (i) failing to adequately search, restrain, disarm,

and supervise Juarez; (ii) increasing the risk of violent resistance by

searching Juarez, seizing his property, checking for warrants, and

detaining him; and (iii) failing to warn Santander and Almeida that

Juarez had not been adequately searched and disarmed.

Seward moved for dismissal under the Tort Claims Act’s

election-of-remedies provision, which provides that certain tort suits

against a governmental employee based on conduct within the “general

scope of that employee’s employment” shall be dismissed. 15 Seward

asserted he was acting as a police officer, notwithstanding his off-duty

work, because he was responding to a reasonable suspicion that Juarez

was committing or about to commit a crime. After considering the

evidence, the trial court granted the motion.

Point 2 Point then filed a combined traditional and no-evidence

summary-judgment motion, alleging it could not be liable for Seward’s

actions when his conduct was within the scope of his governmental

employment. Home Depot filed a hybrid summary-judgment motion on

the same ground, additionally asserting that (1) the common-law

public-safety officer’s rule restricts its duties owed to the police officers

and (2) there is no evidence Home Depot or Painter breached the

judgment in Home Depot’s favor on the vicarious-liability claims against it

based on Lateef’s conduct. 700 S.W.3d 126, 165 (Tex. App.—Dallas 2023).

15 See TEX. CIV. PRAC. & REM. CODE § 101.106(f).

9

remaining duties owed. 16 The trial court granted both motions on the

evidence submitted, and the plaintiffs appealed the final judgment.

In a fractured decision with three opinions, the court of appeals

reversed and remanded in part. 17 As to Seward, the lead opinion

concluded dismissal was improper. 18 The opinion reasoned that a jury

could find Seward’s conduct was outside the scope of his police-officer

employment because he “was merely assisting a private employer in

enforcing the employer’s policies and in ejecting a potential trespasser”

but only “up to the point he contacted dispatch to determine whether

Juarez had any outstanding warrants.” 19 On this issue, the lead opinion

cobbled a majority judgment as the middle position between the other

two divergent writings. 20 A concurring and dissenting opinion concluded

Seward was acting in his private capacity up to, but also including, the

warrant check because even then, he had “no police reason to contact

16 Home Depot asserted other summary-judgment grounds, including:

(1) the plaintiffs’ negligence claims constitute improperly pleaded

premises-liability claims to which the negligence standard cannot apply as a

matter of law; (2) Seward’s conduct as a governmental employee was the

intervening, superseding cause of the injuries; (3) no evidence exists that Home

Depot negligently undertook its asset-protection service for the protection of

the responding police officers; and (4) no evidence supports that Home Depot

is vicariously liable for Painter’s, Seward’s, or Lateef’s actions.

17700 S.W.3d at 164-65 (Garcia, J.); see id. at 165 (Carlyle, J.,

concurring and dissenting); id. at 169 (Rosenberg, J., dissenting).

18 Id. at 164 (Garcia, J.).

19 Id. at 146.

20 Id. at 164-65 (describing the disposition “[i]n light of the separate

opinions”).

10

dispatch.” 21 A dissenting opinion would have held that Seward’s

relevant conduct was entirely within the scope of his police-officer

employment, explaining that the lead opinion “focuses on the facts

relating to the criminal trespass warning rather than the evidence

showing the reason for the warning—potential theft.” 22 Because the

court affirmed the dismissal of the claims against Seward that are based

on his warrant check or subsequent conduct, it also affirmed the

summary judgment on the claims against Point 2 Point and Home Depot

to the extent those claims are based on that same conduct. 23

As to the other claims against Home Depot, the court agreed that

fact issues preclude summary judgment. 24 The lead opinion assumed

the public-safety officer’s rule applied and noted that Home Depot still

had a duty to warn of known, dangerous conditions that were unknown

to the responding officers. 25 Relying on Painter’s testimony that he did

not see Seward search Juarez, the opinion concluded that there was

some evidence Home Depot knew Juarez had not been searched, which

could constitute a dangerous condition, and provided no warning of it. 26

21 Id. at 167-69 (Carlyle, J., concurring and dissenting).

22 Id. at 171 (Rosenberg, J., dissenting).

23 Id. at 151-53, 165 (Garcia, J.) (citing Ogg v. Dillard’s, Inc., 239 S.W.3d

409, 418 (Tex. App.—Dallas 2007, pet. denied), and Leake v. Half Price Books,

Recs., Mags., Inc., 918 S.W.2d 559, 564 (Tex. App.—Dallas 1996, no writ)).

24 Id. at 165.

25 Id. at 156-57.

26 Id. at 157-58 & n.5.

The court of appeals also rejected Home Depot’s

arguments supporting its other summary-judgment grounds. See id. at 153-55,

158-65; supra note 16.

11

Seward and Point 2 Point petitioned for review, challenging the

court of appeals’ holding that a fact issue exists on whether Seward’s

conduct before the warrant check was within the scope of his

governmental employment. In a separate petition for review, Home

Depot argues that (1) the public-safety officer’s rule should be adopted

and applies here, (2) a retailer owes no duty to warn responding officers

that a detained suspect has not been searched when it is unknown that

the suspect possesses a concealed weapon, and (3) it is not vicariously

liable for Seward’s conduct as a police officer. 27 We granted both

petitions for review.

III. Discussion

A governmental employee’s motion that invokes the right to

dismissal under the Tort Claims Act’s election-of-remedies provision is,

in effect, an assertion of governmental immunity. 28 Our review of a

ruling on such a motion, including the proper construction and

application of the statutory provision, is de novo. 29 Likewise, we review

de novo a ruling on a hybrid summary-judgment motion. 30 When both

27 Because we conclude that these issues are dispositive, we do not reach

Home Depot’s issues that address its alternative summary-judgment grounds.

28 Garza v. Harrison, 574 S.W.3d 389, 400 n.43 (Tex. 2019) (citing

Marino v. Lenoir, 526 S.W.3d 403, 405 & n.5 (Tex. 2017)); see Alexander v.

Walker, 435 S.W.3d 789, 791 (Tex. 2014) (noting that a suit that is eligible for

dismissal under section 101.106(f) “actually seeks to impose liability against

the governmental unit rather than on the individual specifically named” and

is against that unit “in all but name only” (quoting Tex. Adjutant Gen.’s Off. v.

Ngakoue, 408 S.W.3d 350, 356-57 (Tex. 2013))).

29 Garza, 574 S.W.3d at 400.

30 Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 882 (Tex. 2024).

12

parties present evidence on these types of motions, as here, the

standards of review mirror each other. 31 The ultimate question is

whether an issue of material fact precludes dismissal or summary

judgment. 32 To answer that question, “[w]e examine the evidence in the

light most favorable to the nonmovant, indulging reasonable inferences

and resolving any doubts against the moving party.” 33

We consider each of the trial court’s rulings in turn.

A. General Scope of a Police Officer’s Employment

We first address whether Seward is entitled to dismissal under

the Tort Claims Act. In doing so, we describe how section 101.106(f)—

the election-of-remedies provision—relates to police officers, who are

“relatively unique among governmental employees.” 34 We then consider

whether that provision governs here. We conclude it does because

Seward’s conduct was within the general scope of his police-officer

employment. The court of appeals erred in holding otherwise, and

Seward is entitled to have the suit against him dismissed.

1.

Under section 101.106(f), a governmental employee may move to

dismiss a suit that is “considered to be against the employee in the

employee’s official capacity only.” 35 To qualify as such, the suit must be

one that (1) is “based on conduct within the general scope of that

31 City of Austin v. Powell, 704 S.W.3d 437, 448 (Tex. 2024).

32 Id.; Marino, 526 S.W.3d at 405.

33 Fossil Grp., 691 S.W.3d at 882.

34 Garza, 574 S.W.3d at 403.

35 TEX. CIV. PRAC. & REM. CODE § 101.106(f).

13

employee’s employment” and (2) “could have been brought under this

chapter against the governmental unit.” 36 If so, the suit “shall be

dismissed,” but the plaintiff may amend the pleadings to name the unit

as defendant. 37 Section 101.106(f) compels a plaintiff to “decide at the

outset whether an employee acted independently and is thus solely

liable, or acted within the general scope of his or her employment such

that the governmental unit is vicariously liable.” 38 At its core, the

provision “favors the expedient dismissal of governmental employees

when suit should have been brought against the government.” 39

The parties disagree on whether Seward’s conduct was within the

scope of his employment as a Dallas Police Officer. 40 The Tort Claims

Act broadly defines “scope of employment” to mean (1) “the performance

for a governmental unit of the duties of an employee’s office or

employment,” including (2) “being in or about the performance of a task

lawfully assigned to an employee by competent authority.” 41 Simply put,

36 Id.

37 Id. The governmental unit may still be protected by immunity from

suit, even if its employee is entitled to dismissal under this section. Franka v.

Velasquez, 332 S.W.3d 367, 385 (Tex. 2011).

38 Garza, 574 S.W.3d at 399 (quoting Mission Consol. Indep. Sch. Dist.

v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)).

39 Id. (quoting Tex. Adjutant Gen.’s Off. v. Ngakoue, 408 S.W.3d 350, 355

(Tex. 2013)).

40 It is undisputed that Seward was an employee of a governmental unit,

see TEX. CIV. PRAC. & REM. CODE § 101.001(2), (3), and that the plaintiffs’ suit

against Seward “could have been brought” under the Act against that unit for

the purposes of section 101.106(f), see Franka, 332 S.W.3d at 385.

41 TEX. CIV. PRAC. & REM. CODE § 101.001(5).

14

the inquiry is whether there is “a connection between the employee’s job

duties and the alleged tortious conduct.” 42 Because the analysis

objectively assesses conduct, the officer’s “state of mind, motives, and

competency are irrelevant.” 43 Conduct is 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 employer.” 44

For most governmental employees, the inquiry is usually

straightforward. But the analysis is frequently more complicated for

peace officers, which includes police officers like Seward. 45 This

complexity may arise because police officers “retain their status as peace

officers twenty-four hours a day,” are “expected to stop crime whenever

it occurs,” and are “relatively unique among governmental employees as

they may be required to spring into action at a moment’s notice.” 46

42 Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017).

43 Garza, 574 S.W.3d at 400-01.

44 Id. at 400 (quoting Alexander v. Walker, 435 S.W.3d 789, 792 (Tex.

2014)). The use of “intended” does not incorporate a subjective analysis; it

“simply reflect[s] that an employee whose conduct is unrelated to his job, and

therefore objectively outside the scope of his employment, is engaging in that

conduct for his own reasons.” Laverie, 517 S.W.3d at 753-54.

45 TEX. CODE CRIM. PROC. art. 2A.001(3) (designating “police officer[s]

of a municipality” as “peace officers”). In 2023, the Legislature enacted

nonsubstantive revisions of the Code of Criminal Procedure by moving certain

articles to new chapters, including those related to the powers and duties of

peace officers. See Act of May 17, 2023, 88th Leg., R.S., ch. 765, § 1.001,

2023 Tex. Gen. Laws 1837-1931 (codified at TEX. CODE CRIM. PROC. chs. 2A,

2B, 13A, 45A, and 55A). For convenience, we cite to the current version of the

Code.

46 Garza, 574 S.W.3d at 403 (internal quotation marks omitted).

15

As relevant here, for example, article 6.06 of the Code of Criminal

Procedure states, “Whenever, in the presence of a peace officer, or within

his view, one person is about to commit an offense against

the . . . property of another . . . it is his duty to prevent it[.]” 47 Article

2A.051(2) reaffirms this duty: “Each peace officer shall . . . in every case

authorized by this code, interfere without warrant to prevent or

suppress crime[.]” 48 And as noted above, the Dallas Police Department

general orders require its off-duty officers to “respond to crimes in

progress.”

Peace officers also commonly engage in off-duty security work,

and this private employment further compounds the analysis. For such

scenarios, we have identified “helpful guidelines,” as described in Garza:

An officer enforcing general laws in accordance with a

statutory grant of authority is acting in the course and

scope of employment as a peace officer. But if an officer is

protecting a private employer’s property, ejecting

trespassers, or enforcing rules and regulations

promulgated by the private employer, a fact question may

arise as to whether the officer’s conduct is in a private or

official capacity. 49

Because these are guidelines, none of the referenced conduct is

categorically dispositive, and any inquiry must unfailingly return to

whether the conduct is encompassed within the textual meaning of the

47 TEX. CODE CRIM. PROC. art. 6.06.

48 Id. art. 2A.051(2); see TEX. GOV’T CODE § 311.016(2) (“‘Shall’ imposes

a duty.”).

49 574 S.W.3d at 403 (emphasis added) (footnote omitted).

16

Act’s scope-of-employment definition. 50 In some instances, protecting

private property, ejecting trespassers, or enforcing house rules may not

implicate the performance of a peace officer’s official duties, and a fact

issue “may” arise as to that question depending on the context of the

officer’s conduct. In other circumstances, such conduct might be either

“the performance for a governmental unit of the duties of an employee’s

office or employment” or “in or about the performance of a task lawfully

assigned to an employee by competent authority” as a matter of law,

bringing it within the course and scope of a peace officer’s official

duties. 51

With this law in mind, we turn to the parties’ dispute.

2.

Drawing on the Garza guidelines, the plaintiffs contend that prior

to the warrant check, Seward was merely protecting Home Depot

property and enforcing house rules by issuing a criminal-trespass

warning at Painter’s direction. Seward counters that he was performing

his peace-officer duties from the time he encountered Juarez because he

was responding to a reasonable suspicion of a theft in progress or about

to be committed. According to Seward, the police department’s general

orders and the Code of Criminal Procedure obliged him to respond in

that scenario, even when off duty, to prevent or suppress the theft. We

agree.

50 See Bexar Appraisal Dist. v. Johnson, 691 S.W.3d 844, 847 (Tex. 2024)

(noting that when the Legislature has supplied a statutory definition of a term,

we are bound to follow that meaning); Ford Motor Co. v. Parks, 691 S.W.3d

475, 482 n.36 (Tex. 2024) (acknowledging that we are a “text-centric court”).

51 TEX. CIV. PRAC. & REM. CODE § 101.001(5).

17

Theft occurs if a person “unlawfully appropriates property with

intent to deprive the owner of property.” 52 And “reasonable suspicion”

is an objective standard that disregards the officer’s “actual subjective

intent.” 53 In other words, reasonable suspicion exists if “the officer has

specific articulable facts that, when combined with rational inferences

from those facts, would lead him to reasonably suspect that a particular

person has engaged or is (or soon will be) engaged in criminal activity.” 54

From Painter’s cellphone call, Seward acquired specific

articulable facts that Juarez had suspiciously concealed store items

worth about $30 in a bucket with the lid on it and was in an area no

reasonable person would take merchandise. When Seward encountered

Juarez hiding inside a store rack with a dubious explanation that he was

trying to scare his girlfriend, Painter’s description was further

corroborated. 55 The rational inferences from these facts would lead any

officer to reasonably suspect that Juarez was in the process of or about

to be engaged in shoplifting—that is, theft.

52 TEX. PENAL CODE § 31.03(a).

53 Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).

54 State v. Cortez, 543 S.W.3d 198, 204 (Tex. Crim. App. 2018) (quoting

Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015)).

55 Cf. D.C. v. Wesby, 583 U.S. 48, 59 (2018) (holding that for purposes of

probable cause, officers could reasonably infer from the suspects’ vague and

implausible stories that they were lying and that those lies indicated a guilty

mind); Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“[O]fficers are not

required to ignore the relevant characteristics of a location in determining

whether the circumstances are sufficiently suspicious to warrant further

investigation.”).

18

As a result, Seward objectively had “reasonable suspicion” a

specific offense against property was afoot. 56 The plaintiffs disagree,

alleging that (1) Seward had not witnessed anything suggesting Juarez

was shoplifting and (2) Juarez had not exited the store without paying

for the merchandise. But neither is required. “[C]itizen informants who

identify themselves,” like Painter, “are considered inherently reliable”

for establishing reasonable suspicion. 57 And a customer can “exercise

control over [and appropriate] property with an intent to deprive, even

if the customer has not yet left the store with the property.” 58

With this suspicion, Seward was tasked under the police

department’s general orders and articles 2A.051(2) and 6.06 of the Code

of Criminal Procedure with a duty to “respond to” and “prevent or

suppress” the offense of theft by a person in his presence. 59 As

56 We need not decide whether the suspicion rose to probable cause for

an arrest. Nevertheless, our sister court has held that probable cause, which

requires a “greater level of suspicion than ‘reasonable suspicion,’” existed in

similar circumstances. State v. Ford, 537 S.W.3d 19, 20-23, 25 n.26, 26

(Tex. Crim. App. 2017).

57 Id. at 26 (internal quotation marks omitted).

58 Id. at 24. Although Home Depot’s policy required that a suspect pass

the last point of sale before apprehension, see supra note 9, that policy has no

role in dictating either the statutory elements for theft or what constitutes

reasonable suspicion for a police officer.

59 See TEX. CODE CRIM. PROC. arts. 2A.051(2), 6.06; DALL. POLICE DEP’T,

supra note 5, § 421.03(A)(1); see also CKJ Trucking, L.P. v. City of Honey Grove,

581 S.W.3d 870, 877 (Tex. App.—Dallas 2019, pet. denied) (noting that an

officer’s public duty can be triggered by reasonable suspicion even without

witnessing a crime); Ogg v. Dillard’s, Inc., 239 S.W.3d 409, 419-20 (Tex. App.—

Dallas 2007, pet. denied) (same). Article 6.06’s disjunctive language—“in the

presence of a peace officer, or within his view”—indicates that an officer need

not see the crime for the duty to be triggered. TEX. CODE CRIM. PROC. art. 6.06

19

statutorily defined, the term “scope of employment” would encompass

the “performance” of that duty, as it is a “dut[y] of [Seward]’s office” as

a peace officer. 60 And the conduct of issuing a criminal-trespass

warning, when objectively viewed and under these circumstances,

constitutes performing that duty. As Painter explained in his call to

Seward, issuing a warning would lead to the recovery of the

merchandise and the removal of Juarez from the property, thereby

preventing or suppressing the criminal activity of which Seward had

reasonable suspicion. 61

The plaintiffs allege that Seward nevertheless acted outside the

scope of what the police department’s general orders authorize by

assisting in or remaining present for an investigation conducted by a

private individual. 62 But when Painter requested Seward’s presence,

his shoplifting investigation had concluded. He had lost visual contact

(emphasis added). And as we referenced in Garza v. Harrison, our sister court

has interpreted similar “within the officer’s presence or view” language from

another article to mean “that an officer need not personally observe the offense

so long as the officer has personal knowledge of facts providing the officer

probable cause to believe an offense was occurring or had occurred.” 574

S.W.3d 389, 402 n.62 (Tex. 2019) (citing TEX. CODE CRIM. PROC. art. 14.03, and

Brother v. State, 166 S.W.3d 255, 257, 260 (Tex. Crim. App. 2005)).

60 See TEX. CIV. PRAC. & REM. CODE § 101.001(5).

61 An officer’s duty to respond to, prevent, or suppress criminal activity

does not necessarily require an arrest. For example, article 6.06 neither

requires nor independently authorizes an arrest to prevent the offense. See

TEX. CODE CRIM. PROC. arts. 6.06 (peace officers’ duty to prevent an offense),

6.07 (preventing an offense is regulated by the same rules “as are prescribed

to the action of the person about to be injured”); Heath v. Boyd, 175 S.W.2d

214, 217 (Tex. 1943) (noting that the nearly identical predecessor to article 6.06

does not require or authorize an arrest).

62 See DALL. POLICE DEP’T, supra note 5, § 421.03(J)(1).

20

and could no longer apprehend Juarez under Home Depot’s policy. 63 At

that point, Painter merely wanted a criminal-trespass warning issued. 64

The plaintiffs also contend that because Painter directed the

actions, Seward’s conduct could not be within the scope of his

governmental employment. But Home Depot and Painter had no right

to control Seward’s performance of his statutory duties, even when he

was off duty. If Seward’s employment contract gave them that power,

“grave public-policy concerns would be implicated” because this would

imply “that peace officers can contractually avoid their oaths of office.” 65

Thus, even if an off-duty officer acts consistent with his private

employer’s directions while performing his peace-officer duties, as

Seward did here, “co-existing motivations do not remove an employee’s

actions from the scope of his [governmental] employment so long as the

conduct serves a purpose of the [governmental] employer.” 66

We therefore hold that Seward established as a matter of law that

his conduct in issuing a criminal-trespass warning was “the

63 See supra note 9. And even if Seward’s conduct could be construed as

enforcing house rules, the performance of a peace officer’s statutory duty would

be law-enforcement activity, which the general orders expressly authorize.

DALL. POLICE DEP’T, supra note 5, § 421.03(J)(1) (prohibiting the enforcement

of house rules unless it “would constitute a law enforcement activity”).

64 Although Painter, as an authorized representative of the property

owner, could independently issue the warning, see TEX. PENAL CODE § 30.05,

“[w]hether a private citizen could effect [a certain action] does not preclude

[that] action from falling within the ambit of a peace officer’s job

responsibilities,” Garza, 574 S.W.3d at 404 n.75.

65 Garza, 574 S.W.3d at 405 (citing TEX. CONST. art. XVI, § 1).

66 Id. at 404 n.74 (quoting Kraidieh v. Nudelman, No. 01-15-01001-CV,

2016 WL 6277409, at *6 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.)).

21

performance for a governmental unit of the duties of [his] office or

employment” as a peace officer. 67 Objectively, Seward was doing his job

and performing his peace-officer duties to prevent or suppress a specific

offense against property that he had reasonable suspicion a person in

his presence was committing or about to commit. 68 In other words, his

conduct did not occur “within an independent course of conduct not

intended by the employee to serve any purposes of the [governmental]

employer.” 69

To avoid dismissal, then, the plaintiffs had to raise a fact issue

that some other alleged negligent conduct before the warrant check was

not “in or about the performance” of Seward’s duties as a peace officer. 70

They did not. The plaintiffs home in on and question the adequacy—

and the occurrence—of Seward’s protective frisk. But the parties do not

dispute that the frisk, to the extent it occurred, was in response to

finding the mace and blade on Juarez. 71 This, combined with his

67 See TEX. CIV. PRAC. & REM. CODE § 101.001(5).

68 Although it is the Legislature’s prerogative to impose duties on

off-duty peace officers, the decision to do so makes sense as a policy matter in

this context. Off-duty officers often wear their uniform when employed as

security guards, as Seward was doing, and are acting in view of the public who

expect them to respond when there is reasonable suspicion of crimes either in

progress or about to be committed in that officer’s presence.

69 Garza, 574 S.W.3d at 400 (internal quotation marks omitted).

70 See TEX. CIV. PRAC. & REM. CODE § 101.001(5).

71 See Lerma v. State, 543 S.W.3d 184, 192 (Tex. Crim. App. 2018)

(holding that an officer had reasonable suspicion to conduct a protective frisk

after having removed a belt knife because the suspect “could have possessed

additional weapons on his person; the need to discover weapons did not

disappear once the person removed the obvious weapon”).

22

suspicious behavior and the knowledge that they soon would be in a

confined space, provided Seward with the authorization as a police

officer to frisk Juarez, which Home Depot’s “no touch” policy otherwise

prohibited him from doing. 72 If the frisk occurred, it would be conduct

within the scope of Seward’s governmental employment while he was

“in or about” responding to the reasonable suspicion of a theft occurring

in his presence. And even if the frisk was “performed wrongly or

negligently, the inquiry is satisfied if, when viewed objectively, ‘a

connection [exists] between the employee’s job duties and the alleged

tortious conduct.’” 73

For these reasons, the suit against Seward is considered to be

against him in his official capacity only and must be dismissed under

section 101.106(f). 74 The trial court properly granted Seward’s motion

to dismiss, and the court of appeals erred to the extent it reversed that

portion of the judgment. 75

72 See id. at 191 (holding that a pat-down is justified if the officer has

“specific and articulable facts” that lead him to reasonably believe the suspect

is armed and dangerous); supra note 12 & accompanying text.

73 Garza, 574 S.W.3d at 394 (quoting Laverie v. Wetherbe, 517 S.W.3d

748, 753 (Tex. 2017)). The plaintiffs’ petition is unclear about whether they

allege Seward negligently detained Juarez before the warrant check, and

Seward stated that he detained Juarez once a soundalike warrant came back.

To the extent the plaintiffs allege a detention occurred before the warrant

check, a warrantless detention may be justified by reasonable suspicion that

“the person detained is, has been, or soon will be engaged in criminal activity.”

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).

74 See TEX. CIV. PRAC. & REM. CODE § 101.106(f).

75 700 S.W.3d 126, 150-51, 164-65 (Tex. App.—Dallas 2023) (Garcia, J.).

23

Our holding also disposes of the claims predicated on Seward’s

conduct: those against Point 2 Point and some of the vicarious-liability

claims against Home Depot. Both the trial court and the court of appeals

concluded summary judgment was proper on those claims to the extent

Seward was acting within the scope of his governmental employment,

although they disagreed on which conduct was covered. 76 In this Court,

the plaintiffs do not challenge those rulings and concede that whether a

private employer can be held liable for an off-duty officer’s conduct as a

police officer “is simply not an issue presently before the Court.” We

therefore express no opinion on the merits of this issue. And because we

agree with the trial court as to when Seward was acting within the scope

of his peace-officer employment, we reinstate the summary judgment on

those claims.

B. The Public-Safety Officer’s Rule

We now address whether summary judgment was proper on the

remaining claims against Home Depot for negligence and vicarious

liability based on Painter’s conduct. These claims turn on the existence

and parameters of the duties Home Depot owed to Almeida and

Santander, a threshold question of law in a negligence case. 77 As a

matter of first impression, we consider whether to adopt the

public-safety officer’s rule, which restricts the duties owed to responding

76 Id. at 151-53, 165; see id. at 153 n.3 (holding that the plaintiffs failed

to cite authority and waived their argument that “it is contrary to public policy

to hold that Point 2 Point and Home Depot are not liable for Seward’s conduct

under these facts”).

77 See HNMC, Inc. v. Chan, 683 S.W.3d 373, 380 (Tex. 2024); United

Rentals N. Am., Inc. v. Evans, 668 S.W.3d 627, 638 (Tex. 2023).

24

officers. Concluding that public policy supports the rule’s adoption in

Texas, we apply it here. Because the plaintiffs did not raise a fact issue

that Home Depot breached its remaining duties, the trial court properly

granted a take-nothing summary judgment on these claims.

1.

We begin with the historical background for the public-safety

officer’s rule. In the late nineteenth century, the Supreme Court of

Illinois formulated a common-law rule by classifying firefighters as

“mere naked licensee[s],” rather than invitees, when they entered the

premises as a matter of legal right to extinguish a fire. 78 As a result of

this status, the property owner assumed no duties toward firefighters

“except that he will refrain from willful or affirmative acts which are

injurious.” 79 Originally known as the “fireman’s rule,” it garnered

nearly unanimous acceptance and was adopted across jurisdictions, 80

78 Gibson v. Leonard, 32 N.E. 182, 189-92 (Ill. 1892), overruled in part

by Dini v. Naiditch, 170 N.E.2d 881 (Ill. 1960); see Woodruff v. Bowen, 34 N.E.

1113, 1117 (Ind. 1893) (“[T]he owner of a building in a populous city does not

owe it as a duty, at common law, independent of any statute or ordinance, to

keep such building safe for firemen, or other officers who in a contingency may

enter the same under a license conferred by law.”); see also David L. Strauss,

Where There’s Smoke, There’s the Firefighter’s Rule: Containing the

Conflagration after One Hundred Years, 1992 WIS. L. REV. 2031, 2034-35

(1992) (describing the rule’s history).

79 Gibson, 32 N.E. at 189.

80 Walters v. Sloan, 571 P.2d 609, 610-11 (Cal. 1977) (collecting early

cases and noting that the “rule was born almost a century ago, earning nearly

unanimous acceptance”); see Moody v. Delta W., Inc., 38 P.3d 1139, 1140-42

(Alaska 2002) (discussing the rule’s broad acceptance); Aetna Cas. & Sur. Co.

v. Vierra, 619 A.2d 436, 437 (R.I. 1993) (same).

25

evolving to cover not only firefighters but also police officers and other

public-safety officers. 81

Over time, however, courts became disenchanted with grounding

the rule in premises-liability categories as the rationale proved

awkward and unsatisfactory. Firefighters and police officers

discharging their public duties do not fit neatly into the traditional

licensee category, but neither are they trespassers or invitees. 82 This is

so because they enter the premises (1) as a matter of legal right rather

81 Apodaca v. Willmore, 392 P.3d 529, 539 (Kan. 2017) (“In our sister

jurisdictions that have adopted the firefighter’s rule, approximately 25 have

extended it to police officers and in many cases, other public safety officers.”);

Martellucci v. Fed. Deposit Ins. Co., 748 A.2d 829, 830 n.1 (R.I. 2000) (noting

that most jurisdictions now apply the rule to police officers and other

public-safety officials); Flowers v. Rock Creek Terrace Ltd. P’ship, 520 A.2d 361,

366 n.4 (Md. 1987) (same). But see, e.g., Cole v. Hubanks, 681 N.W.2d 147, 149,

154 (Wis. 2004) (declining to extend the rule to police officers).

82 See, e.g., Flowers, 520 A.2d at 367 (“Most [courts] have concluded that

firemen do ‘not fit comfortably within the traditional concepts’ of landowner

liability.” (quoting Krauth v. Geller, 157 A.2d 129, 130 (N.J. 1960))); Thomas v.

Pang, 811 P.2d 821, 823 (Haw. 1991) (“Difficulty arose when fire fighters were

classified as invitees or licensees as they did not fit neatly in either category.”);

Kreski v. Mod. Wholesale Elec. Supply Co., 415 N.W.2d 178, 181 (Mich. 1987)

(noting that firefighters do not cleanly fit into licensee or invitee category);

Strauss, supra note 78, at 2034-35 (“Most courts, however, became

disenchanted with such a classification of firefighters because of the inherent

difficulties of neatly fitting firefighters into a category of entrant.”); Francis H.

Bohlen, The Duty of a Landowner Towards Those Entering His Premises of

Their Own Right, 69 U. PA. L. REV. 340, 344 (1921) (describing the difficulty of

classifying officers entering premises by right). In Texas, an invitee “is one

who enters the property of another with the owner’s knowledge and for the

mutual benefit of both”; a licensee “is a person who goes on the premises of

another merely by permission, express or implied, and not by any express or

implied invitation”; and a trespasser is one who enters another’s property

without express or implied permission. Cath. Diocese of El Paso v. Porter, 622

S.W.3d 824, 829 (Tex. 2021) (internal quotation marks omitted).

26

than based on permission, consent, or business invitation; and (2) for the

benefit of the landowner and the public, not for their own purposes. 83

Courts also found the rationale incongruent when other public officials

who had a legal right to enter the premises—for example, “postmen,

water meter readers and revenue inspectors”—were judicially ascribed

invitee status in contrast to firefighters and police officers. 84 Finally,

some courts noted the fundamental unfairness of basing the rule on

83 See, e.g., Pearson v. Can. Contracting Co., 349 S.E.2d 106, 110

(Va. 1986) (“Policemen and firemen . . . enter premises as of right, under a

privilege based on a public purpose. They clearly are not trespassers. Nor can

they be classified as licensees or invitees, who enter with consent or invitation

of the occupant, as consent and invitation are irrelevant to a policeman’s or

fireman’s privileged entry.”); Dini v. Naiditch, 170 N.E.2d 881, 885 (Ill. 1960)

(noting that the “legal fiction that firemen are licensees . . . is without any

logical foundation,” as it is “highly illogical to say that a fireman who enters

the premises quite independently of either invitation or consent cannot be an

invitee because there has been no invitation, but can be a licensee even though

there has been no permission”); Strauss, supra note 78, at 2035 (“[B]ecause

entry by a firefighter is actually by public right rather than by any type of

permission, he or she cannot strictly be considered a licensee.”). Some courts

have classified police officers and firefighters as a sui generis category. See

Apodaca, 392 P.3d at 535-36 (collecting cases classifying firefighters variously

as licensees, invitees, or sui generis).

84 Dini, 170 N.E.2d at 885 (“If benefit to the landowner is the decisive

factor, it is difficult to perceive why a fireman is not entitled to that duty of

care, or how the landowner derives a greater benefit from the visit of other

public officials, such as postmen, water meter readers and revenue inspectors,

than from the fireman who comes to prevent the destruction of his property.”);

see Thomas, 811 P.2d at 823 (“The Rule also failed to adequately explain the

distinction in treating some public employees, such as postal workers and

building inspectors, as invitees, while classifying fire fighters and police

officers as licensees.”); Flowers, 520 A.2d at 367 (describing how postal workers

and building inspectors enter premises by legal right and noting that

“[n]othing in traditional premises liability law, however, furnishes a ground

for classifying some of these public employees as invitees and others as

licensees”).

27

entrant status and limiting “the rule’s application to the

landowner/occupant context, thus denying liability for negligent acts of

these individuals but not for others whose negligent acts injure police

officers or firemen elsewhere.” 85 For these reasons, the modern trend

has been to root the rule in public policy and extend it beyond the

premises-liability context. 86

85 Pottebaum v. Hinds, 347 N.W.2d 642, 645 (Iowa 1984); see, e.g.,

Apodaca, 392 P.3d at 541 (“A firefighter is prohibited from recovering based on

the initial act of negligence regardless of whether the call is to a traffic accident

or someone’s home, to a fire or some other emergency.”); Court v. Grzelinski,

379 N.E.2d 281, 286 (Ill. 1978) (Ryan, J., dissenting) (noting that it is

“extremely illogical” that the rule “would not permit a fireman to recover for

injuries he receives in extinguishing a fire in my automobile which I caused by

negligently pouring gasoline on the hot manifold if the automobile is parked in

my driveway, but that he would be permitted to recover if my automobile is

parked in the street”).

86 See Baldonado v. El Paso Nat. Gas Co., 176 P.3d 277, 280 (N.M. 2007)

(noting that most modern decisions base the rule on public policy); Fordham v.

Oldroyd, 171 P.3d 411, 413 (Utah 2007) (same); Flowers, 520 A.2d at 447

(“[T]he fireman’s rule is best explained by public policy.”); RESTATEMENT

(THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM § 32 (AM. L.

INST. 2010) (“Under its modern incarnation, that rule is based on a mélange of

public-policy considerations and dealt with under the rubric of duty.”);

RESTATEMENT (THIRD) OF TORTS: MISCELLANEOUS PROVISIONS § 5_0 reporters’

note cmt. k (AM. L. INST., Tentative Draft No. 3, 2024) (“[A] strong majority of

the courts that have adopted the firefighter’s rule support its application to

any actor whose tortious activity creates the need for the rescuer’s presence.”).

But see Dolsen v. VeoRide, Inc., 235 N.E.3d 1258, 1260 (Ind. 2024) (recognizing

two distinct doctrines: a firefighter’s rule that applies only to a firefighter’s

premises-liability claim and an expanded first-responder’s rule that “limits the

duty owed to all first responders during an emergency”); Sepega v. DeLaura,

167 A.3d 916, 919 (Conn. 2017) (declining to extend the rule “beyond claims of

premises liability”); Grzelinski, 379 N.E.2d at 285 (same). As the doctrinal

basis shifted away from premises-liability categories, some courts initially

relied on assumption of risk. But this basis also largely fell out of favor as

jurisdictions adopted comparative-negligence regimes. Fordham, 171 P.3d at

28

We have not previously considered whether to adopt a

public-safety officer’s rule. 87 In 1996, the issue was presented to us in

Juhl v. Airington, but we did not reach it. 88 Justice Gonzalez, joined by

Justice Abbott, wrote separately to advocate for adopting the rule

consistent with the “trend in other jurisdictions to extend the Rule

beyond premises liability based on public policy.” 89 We do so now,

417 (Wilkins, C.J., concurring in part) (“[A]s states have abandoned the

assumption of risk doctrine as part of the evolution of comparative negligence,

so too have courts ceased to rely on assumption of risk as a foundation for their

professional rescuer rule.”); cf. Austin v. Kroger Tex., L.P., 465 S.W.3d 193,

209-10 (Tex. 2015) (“[T]he common law affirmative defenses of assumption of

the risk and contributory negligence no longer exist under Texas law.”); Del

Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 772 (Tex. 2010) (“A plaintiff’s

appreciation of and voluntary exposure to a dangerous on-premises risk is

something the jury can weigh when apportioning responsibility[.]”).

87 In 1943, we referenced the firefighter’s rule but did not apply it.See

Tex. Cities Gas Co. v. Dickens, 168 S.W.2d 208, 211 (Tex. 1943) (noting that the

defendant “relies upon the rule that, in the absence of any statutory provision

to the contrary, a member of a fire department, who enters a building in the

exercise of his duties, is a mere licensee, under a permission to enter given by

the law, and the owner or occupant of the building owes him no duty to keep it

in a reasonably safe condition”). And a few of our courts of appeals have

applied or discussed the rule. See Thomas v. CNC Invs., L.L.P., 234 S.W.3d

111, 123 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Allen v. Albright, 43

S.W.3d 643, 647 (Tex. App.—Texarkana 2001, no pet.); Campus Mgmt., Inc. v.

Kimball, 991 S.W.2d 948, 952-53 (Tex. App.—Fort Worth 1999, pet. denied);

Airington v. Juhl, 883 S.W.2d 286, 291 (Tex. App.—El Paso 1994), rev’d, 936

S.W.2d 640 (Tex. 1996); Peters v. Detsco, Inc., 820 S.W.2d 38, 40 (Tex. App.—

Houston [14th Dist.] 1991, writ denied); Hous. Belt & Terminal Ry. Co. v.

O’Leary, 136 S.W. 601, 605 (Tex. Civ. App.—Galveston 1911, writ denied).

88 936 S.W.2d 640, 641 (Tex. 1996).

89 Id. at 645-47 (Gonzalez, J., concurring).

29

aligning our jurisprudence on this issue with the majority of

jurisdictions. 90

Before addressing the public-policy considerations, we note that

the question here is not whether to recognize a new duty. 91 Rather, we

are asked to adopt a categorical rule restricting the legal duties owed to

a specific class of persons—responding public-safety officers—under

certain circumstances. The Restatement (Third) of Torts advocates such

an approach: “In exceptional cases, when an articulated countervailing

principle or policy warrants denying or limiting liability in a particular

class of cases, a court may decide that the defendant has no duty or that

90 See Apodaca, 392 P.3d at 537 (“More than 30 jurisdictions in the

United States have adopted the firefighter’s rule[.]”); RESTATEMENT (THIRD)

OF TORTS: MISCELLANEOUS PROVISIONS § 5_0 reporters’ note cmt. b (noting

that “approximately 35 states” have adopted the rule). Some jurisdictions have

also codified or modified the rule by statute. See, e.g., CAL. CIV. CODE § 1714.9;

N.H. REV. STAT. § 507:8-h. Although most jurisdictions have adopted the rule,

a minority has not. See Sepega, 167 A.3d at 929 (“In total, eighteen states have

abolished the firefighter’s rule, severely limited its application, or have not

addressed it at all.”). A few states have limited or abolished the common-law

rule by legislative action. See FLA. STAT. § 112.182; ILL. COMP. STAT. ch. 425

25/9f; MICH. COMP. LAWS § 600.2965; MINN. STAT. § 604.06; N.J. STAT.

§ 2A:62A-21; N.Y. GEN. OBLIG. L. § 11-106; VA. CODE § 8.01-226. High courts

in at least two jurisdictions have rejected the rule. Trousdell v. Cannon, 572

S.E.2d 264, 266 (S.C. 2002); Christensen v. Murphy, 678 P.2d 1210, 1217

(Or. 1984). Around ten states have not addressed the rule. See Apodaca, 392

P.3d at 538. As the Supreme Court of Utah has noted, however, “Most of the

handful of jurisdictions rejecting or significantly limiting the . . . rule have

done so, at least in part, because of its association with the discredited

assumption of the risk doctrine.” Fordham, 171 P.3d at 414; see supra note 86.

91 See HNMC, Inc. v. Chan, 683 S.W.3d 373, 380 (Tex. 2024) (“[C]ourts

should only consider recognizing a new duty ‘[w]hen a duty has not been

recognized in particular circumstances.’” (quoting Pagayon v. Exxon Mobil

Corp., 536 S.W.3d 499, 503 (Tex. 2017))).

30

the ordinary duty of reasonable care requires modification.” 92 As the

Restatement notes, this “rubric of duty” may be used “to decide whether

an otherwise negligent actor should be liable to a class of persons in a

certain relationship.” 93 But the propriety of doing so depends on

whether “relatively clear, categorical, bright-line rules of law applicable

to a general class of cases” can be delineated. 94 We likewise have

acknowledged that both “the relationship between the parties” and

“public policy considerations” implicate the existence and parameters of

a legal duty. 95

In considering this broad, policy-laden question of duty, we hold

that public policy supports a public-safety officer’s rule in Texas. Of the

many rationales offered by courts and scholars, we find three especially

compelling. First, the rule encourages the public to promptly call for

assistance from public-safety officers when needed, without hesitation

92 RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL &

EMOTIONAL HARM § 7(b) (AM. L. INST. 2010); see id. § 7 cmt. a (noting that in

“some categories of cases, reasons of principle or policy dictate that liability

should not be imposed” and “courts use the rubric of duty to apply general

categorical rules withholding liability”).

93 Id. § 7 cmt. e (identifying the firefighter’s rule as an example),

reporters’ note cmt. e (noting that when the firefighter’s rule is “based on a

considerable variety of public-policy considerations,” “the rule is an example of

the no-duty reasoning referred to in this Section”).

94 Id. § 7 cmt. a.

95 Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 34 (Tex. 2002); see

Allen Keller Co. v. Foreman, 343 S.W.3d 420, 424 n.4 (Tex. 2011) (recognizing

the “distinction between broad, policy-laden questions of duty” to be decided by

courts as a matter of law and the “more particularized scope-of-liability

inquiries such as proximate cause”).

31

or fear of liability. 96 These officers have the training, skill, and expertise

to deal with the risks associated with providing such assistance as well

as a unique and a special relationship with the members of the public

that call on them to confront perils as part of their official

responsibilities. 97 Second, the rule promotes public trust by minimizing

(i) “the specter of invidious discrimination” that an officer may be “more

willing to risk injury when prospects for a tort recovery are promising,”

(ii) doubt about the integrity of police and fire investigations when a

negligence lawsuit from an investigator’s fellow officer may be

forthcoming or pending, and (iii) cynicism when officers come to the

public’s aid but then sue those whom they served for ordinary acts of

96 See, e.g., Fordham v. Oldroyd, 171 P.3d 411, 413 (Utah 2007)

(pointing out that it would be “naïve” to believe that public-safety officers will

be called on to address only “prudent acts gone awry” and “[m]embers of the

public, who owing to their negligence find themselves in need of aid, should

summon assistance without fear of exposing their assets to compensate their

rescuer in the event of injury”); Shypulski v. Waldorf Paper Prods. Co., 45

N.W.2d 549, 551 (Minn. 1951) (“An owner, facing knowledge that he risks being

mulcted in damages by those whom he summons to aid in the extinguishment

of a fire, would be strongly tempted by self-interest to temporize with the

dangerous situation, to adopt his own means of saving his property, and to

delay summoning aid until perhaps greater danger would be threatened to the

public.” (quoting Suttie v. Sun Oil Co., 15 Pa. D. & C. 3, 5-6 (Ct. Com. Pl.

1931))); Robert H. Heidt, When Plaintiffs Are Premium Planners for Their

Injuries: A Fresh Look at the Fireman’s Rule, 82 IND. L.J. 745, 783-84 (2007)

(noting that the rule sends the message “[s]ummon the professional rescuers

at once!” while fear of liability in the absence of the rule may lead a business

“to delay calling the professionals in the hope that its employees—the preferred

firefighters—can deal with the fire” and that this “offends the interest of

society” as the employer and its employees “may overestimate their relative

competence to deal with the peril compared to the professionals”).

97 See Thomas v. CNC Invs., L.L.P., 234 S.W.3d 111, 120 (Tex. App.—

Houston [1st Dist.] 2007, no pet.) (noting that the rule’s purpose is to encourage

citizens to rely on “the skill, training, and expertise of these public servants”).

32

negligence. 98 Finally, as Justice Gonzalez noted, “the risk and cost of

injuries to officers are more effectively spread by passing them on to the

public as a whole through the government entities that employ them”—

for example, through workers’ compensation—“rather than by making

an individual pay for the injury.” 99 That said, as a society, we

collectively owe a significant debt to public-safety officers who confront

perils as part of their callings, and “responsible citizens can, and should,

see to it that their public officials fairly compensate” those officers. 100

98 Heidt, supra note 96, at 747, 772-74, 776; see Fordham, 171 P.3d at

414 (recognizing that the public’s expectations would be upset if the law were

contrary to the “widely held belief that one is not exposed to tort liability for

negligence requiring rescue[, which] emanates from a broadly shared value

about the workings of a well-ordered society”). Heidt also discussed a

“reciprocity rationale,” which deems the rule a fair and “appropriate

counterpart” to the immunity “that prevents crime victims and home and

business owners from maintaining a suit against [public-safety officers] whose

negligence injures them.” Heidt, supra note 96, at 762. This rationale is

perhaps particularly conspicuous in this case. See supra part III.A.

99 Juhl v. Airington, 936 S.W.2d 640, 647 (Tex. 1996) (Gonzalez, J.,

concurring) (citing TEX. LAB. CODE §§ 401.001–418.002); accord Fordham, 171

P.3d at 416 (“The nature of the rescuer–rescued relationship is one that

contemplates allocation of costs across society generally for injuries sustained

by professional rescuers.”); Pottebaum v. Hinds, 347 N.W.2d 642, 645-46 (Iowa

1984) (“[A]lthough we are aware of the widespread existence of liability

insurance, we believe these risks are more effectively and fairly spread by

passing them onto the public through the government entities that employ

firefighters and police officers.”); cf. Heidt, supra note 96, at 789 (arguing that

first-party insurers “are better able to estimate the likelihood of a professional

rescuer being injured on the job” and “the likely severity of such injuries” than

“the defendant’s liability insurer is able to estimate the likelihood of its insured

negligently causing a peril that leads to a rescuer’s injury,” particularly given

the unpredictable nature of tort awards).

100 Fordham, 171 P.3d at 416.

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But these policy considerations do not support a sweeping rule

extinguishing all potential liability. We must therefore decide what

formulation to adopt. In canvassing the various permutations across

jurisdictions, we conclude that a recent tentative draft from the

Restatement (Third) of Torts articulates the rule in a manner consistent

with public policy and the narrow approach taken by most states.

Drawing on that version, we adopt the following rule:

An 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 that occasioned the officer’s presence, 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. 101

In doing so, we emphasize both the rule’s circumscribed nature and the

other duties that may be owed to a responding officer. Among other

constraints, the rule does not (1) absolve conduct more culpable than

negligence, (2) shield tortious conduct that is independent of or distinct

101 See RESTATEMENT (THIRD) OF TORTS: MISCELLANEOUS PROVISIONS

§ 5_0 (AM. L. INST., Tentative Draft No. 3, 2024). Instead of “public-safety

officer,” the Restatement draft uses “professional rescuer,” albeit limited to

“publicly employed professionals,” in reference to the rule’s converse “rescue

doctrine.” Id. § 5_0 cmts. a, d (recognizing that the rule “deviates sharply from

general tort principles, which hold, and have long held, that a party who

attempts a rescue and is injured thereby may recover from the actor whose

tortious conduct made the rescue necessary”). However, we have not addressed

whether the “rescue doctrine” survived the adoption of comparative negligence

in Texas and, if so, what form it would take. See Snellenberger v. Rodriguez,

760 S.W.2d 237, 237 (Tex. 1988) (acknowledging the rescue doctrine but noting

that the “doctrine came into being before the adoption of comparative

negligence in order to relieve the all or nothing effects of contributory

negligence”). And in our view, the term “public-safety officer” better captures

the rule’s public-employment requirement and basis in public policy.

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from the conduct that occasioned the public-safety officer’s presence, or

(3) apply to tortious conduct that occurs after the officer arrives at the

scene, including the violation of any duty to warn the officer. 102

This case raises the question of a premises owner’s or occupier’s

duty to warn when the rule applies. In accord with the rule’s history

and supporting policies, we hold that the duty owed is no greater than

that owed to a licensee: to use ordinary care to warn of a dangerous

condition of which the owner or occupier is aware and the officer is not. 103

102 RESTATEMENT (THIRD) OF TORTS: MISCELLANEOUS PROVISIONS § 5_0

cmts. h–i, illus. 10, & reporters’ note cmt. i; see Babes Showclub, Jaba, Inc. v.

Lair, 918 N.E.2d 308, 314 (Ind. 2009) (“[T]he automobile driver who

negligently causes an accident can call paramedics without fear that they will

sue him for causing the accident, but he must behave reasonably once they

arrive.”). This approach is also consistent with our case law that a property

owner or occupier would be liable for “any act of negligence” after a firefighter

“was at the scene of the fire in the performance of a duty.” Hous. Belt &

Terminal Ry. Co. v. Johansen, 179 S.W. 853, 854 (Tex. 1915) (applying a

continuing-negligence theory); cf. Burton Constr. & Shipbuilding Co. v.

Broussard, 273 S.W.2d 598, 602 (Tex. 1954) (noting that a proprietor has a

duty not to injure someone rightfully on the property, even as a licensee,

through active negligence); Tex. Cities Gas Co. v. Dickens, 168 S.W.2d 208, 211

(Tex. 1943) (holding that a gas company had a duty to cut off the gas going into

a burning building when the fireman was “at the scene of the fire, performing

his duties as a fireman”); Campus Mgmt., Inc. v. Kimball, 991 S.W.2d 948, 951

(Tex. App.—Fort Worth 1999, pet. denied) (noting that “Texas courts have not

referred to active negligence . . . since the Texas Cities case” and that

“[a]ssuming the active negligence doctrine is still viable with regard to fire

fighters, the active negligence must have occurred after the fire fighter arrived

on the scene to combat the blaze, not before”).

103 Accord Apodaca v. Willmore, 392 P.3d 529, 542 (Kan. 2017) (noting

that the initial tortfeasor still has a duty to warn of known, hidden dangers);

Baldonado v. El Paso Nat. Gas Co., 176 P.3d 277, 281 (N.M. 2007) (same);

Clark v. Corby, 249 N.W.2d 567, 570 & n.8 (Wis. 1977) (collecting cases);

Shypulski v. Waldorf Paper Prods. Co., 45 N.W.2d 549, 553 (Minn. 1951)

(noting that a property owner with knowledge of dangers should not be allowed

35

For that duty to be triggered, however, the premises owner or occupier

must have had a reasonable opportunity under the circumstances,

which would encompass the nature and exigency of the emergency

situation, to warn the responding officer of the hidden danger. 104

2.

Having adopted a public-safety officer’s rule, we now consider

whether it applies to the plaintiffs’ claims against Home Depot. 105 The

“to stand by in silence” when the “burden of a duty to warn of hidden perils

falls lightly upon the landowner in comparison with the cost of his silence,

which is frequently measured in the lives and limbs of firemen and in the

sorrow and suffering of their families”); Allen v. Albright, 43 S.W.3d 643, 647

(Tex. App.—Texarkana 2001, no pet.) (“In cases involving firefighters, Texas

courts have applied the duties owed to an ordinary licensee, including the duty

to warn of known, dangerous conditions.”); see also Cath. Diocese of El Paso v.

Porter, 622 S.W.3d 824, 832 (Tex. 2021) (describing the duty to warn owed to a

licensee); Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (“If

the licensee has the same knowledge about the dangerous condition as the

licensor, then no duty to the licensee exists.”).

104 Accord Apodaca, 392 P.3d at 544 (“[T]he person must have had

knowledge of the danger and an opportunity to warn of it.”); Syracuse Rural

Fire Dist. v. Pletan, 577 N.W.2d 527, 534 (Neb. 1998) (holding that the duty to

warn is dependent upon an awareness of the firefighters’ presence on the

property and an opportunity to warn); Flowers v. Rock Creek Terrace Ltd.

P’ship, 520 A.2d 361, 369 (Md. 1987) (“Negligent acts not protected by the

fireman’s rule may include failure to warn the firemen of pre-existing hidden

dangers where there was knowledge of the danger and an opportunity to

warn.”); Clark, 249 N.W.2d at 570 (requiring a “clear opportunity” to warn).

For example, given the exigency and stress of the situation, a person escaping

a burning house may not have had a reasonable opportunity to warn a

firefighter of hidden dangers, as a matter of law, even if the person passed the

firefighter rushing to the house.

105 Home Depot framed the rule as applying to premises-liability claims,

consistent with earlier decisions from our courts of appeals. See Juhl v.

Airington, 936 S.W.2d 640, 647 (Tex. 1996) (Gonzalez, J., concurring)

(recognizing “that the Fireman’s Rule has been employed in Texas only in

36

plaintiffs did not plead any culpability greater than negligence. And

Home Depot’s allegedly negligent conduct in detaining Juarez, along

with other related conduct, created the peril that occasioned the officers’

presence at the store and injured them. 106 The plaintiffs assert that the

rule should not apply because the risks the officers encountered were

not “inherent in responding to a call to assist an off-duty officer for a

warrant check.” 107 But officers are specifically trained and authorized

to address the safety risk that a suspect might have a concealed weapon

and respond violently. That risk is quintessentially inherent in their

professional responsibilities, including when they assist in verifying a

suspect’s outstanding warrant for a possible arrest.

As to Santander and Almeida, all agree they were on duty and

acting within the scope of their employment as police officers. But the

plaintiffs claim the officers were not responding to an emergency

premises liability cases”); supra note 87. But we need not decide whether the

plaintiffs’ negligence claims were improperly pleaded premises-liability claims

because the rule we adopt today applies to either type of claim.

106 Whether Seward called for backup while performing his official

duties or on Home Depot’s behalf has no bearing on the rule’s application. See

RESTATEMENT (THIRD) OF TORTS: MISCELLANEOUS PROVISIONS § 5_0 cmt. i &

illus. 11 (“[I]t is immaterial whether the actor summons emergency assistance

or whether another individual makes the call.”); accord Norfolk S. Ry. Co. v.

Johnson, 554 S.W.3d 315, 318 (Ky. 2018) (rejecting the argument that the

homeowner must be the one to call law enforcement).

107 See RESTATEMENT (THIRD) OF TORTS: MISCELLANEOUS PROVISIONS

§ 5_0 cmt. j (“Consistent with the interpretation of most courts, this Section

precludes liability only if the [public-safety officer] is injured by risks that are

inherent in, or peculiar to, the [officer’s] professional responsibilities.”); cf. id.

§ 5_0 cmt. j, illus. 12 (noting that the rule does not apply when an officer

responding to a negligently derailed train was injured by “exposure to the

extremely rare toxic chemical” it was carrying unbeknownst to the officer).

37

because dispatch did not specifically inform them why their assistance

was needed. We disagree with this cramped view of “emergency” for the

purposes of this common-law rule. Santander and Almeida knew that

an off-duty officer was requesting assistance and, according to Almeida’s

testimony, such requests usually involve criminal activity like theft.

They also knew the suspect had a potential outstanding warrant. Their

response was neither routine nor scheduled; rather, it was an

intervention involving a warrant check of a potential criminal, which if

confirmed would mandate an arrest—and they were injured when they

attempted to make that arrest. 108 In short, the officers were engaged in

the performance of emergency activities when they were injured.

For these reasons, the public-safety officer’s rule applies to the

plaintiffs’ claims and restricts the duties Home Depot owed to the

responding officers. 109 But the rule does not relieve Home Depot, as the

108 See RESTATEMENT (THIRD) OF TORTS: MISCELLANEOUS PROVISIONS

§ 5_0 cmt. g (noting that the rule does not apply when a public-safety officer is

injured “performing a routine or scheduled, rather than an emergency,

activity”); accord, e.g., Labrie v. Pace Membership Warehouse, Inc., 678 A.2d

867, 868 (R.I. 1996) (“In Rhode Island the rule has had a limited application to

those situations (such as fighting fires or crimes in progress) in which a crisis

or an emergency causes the hurried intervention of public-safety officers.”).

According to the police deparment’s standard operating procedures, “[a]n

arrest warrant commands that any sworn law enforcement or peace officer that

comes in contact with the person named within the warrant shall arrest the

offender[.]” DALL. POLICE DEP’T, Standard Operating Procedure: Warrants

§ 905(A) (2010).

109 As another ground for a duty, the plaintiffs allege that Home Depot,

by adopting asset-protection policies, undertook a duty to reasonably

implement them. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 838 (Tex.

2000) (“One who undertakes . . . to render services to another which he should

recognize as necessary for the protection of the other’s person or things, is

38

premises occupier, of a duty to warn of known, dangerous conditions of

which the responding officers are unaware. 110 Home Depot’s employee

Painter patently had a reasonable opportunity to warn the officers. The

question is whether he had knowledge of a hidden, dangerous condition.

We have described a dangerous condition as one “that presents an

unreasonable risk of harm.” 111 A risk is unreasonable in this context

when there is a “sufficient probability of a harmful event occurring that

a reasonably prudent person would have foreseen it or some similar

event as likely to happen.” 112 Agreeing with the plaintiffs, the court of

subject to liability to the other for physical harm resulting from his failure to

exercise reasonable care to perform his undertaking” in certain circumstances.

(quoting RESTATEMENT (SECOND) OF TORTS § 323 (AM. L. INST. 1965))); see also

Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (“The critical inquiry

concerning the duty element of a negligent-undertaking theory is whether a

defendant acted in a way that requires the imposition of a duty where one

otherwise would not exist.”). For support, the plaintiffs point to an internal

Home Depot document that asset-protection associates “must discontinue an

apprehension if the subject is a safety risk to the AP Associate, themselves or

others; if the subject runs; has weapon.” (Emphases added.) But these policies

generally address only the protection of “others”—broadly speaking, all visitors

to the property—without being specifically directed towards responding

officers. In light of the public-safety officer’s rule, we conclude that a retailer’s

adoption of general safety policies does not independently create a duty owed

to a responding officer to act without negligence in creating an unsafe condition

that necessitates the officer’s intervention.

110 The plaintiffs also imply that after the officers arrived at the scene,

Painter acted negligently in saying yes “sarcastically” when Juarez asked

whether he was going to jail. But the plaintiffs identify no supporting

authority, and we see no basis for concluding that Painter’s truthful response,

even if self-admittedly in a sarcastic tone, could raise a fact question that

Painter breached a duty owed to the responding officers.

111 County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002).

112 Id. at 556 (internal quotation marks omitted).

39

appeals concluded that a reasonable factfinder could find that

“detaining Juarez without having searched him constituted a dangerous

condition known to Painter and unknown to Santander and Almeida.” 113

We disagree. Importantly, “a hidden danger for a [public-safety]

officer may differ from that for an ordinary citizen.” 114 For example, as

the Maryland high court explained, “firemen must know of the risk that

a fire may cause an elevator to malfunction,” and “[a]n open elevator

shaft concealed by the smoke of the fire is not a hidden danger in the

sense of an unreasonable danger that a fireman could not anticipate

upon attempting to perform his firefighting duties.” 115 Therefore,

according to that court, there is no duty to warn the firefighters “of

potential malfunctions of the elevators in the event of a fire.” 116

In a more recent case, the Kansas high court addressed a

situation where a police officer was responding to an accident after

dispatch informed him that a pickup truck had flipped over and where

on the highway it was located. 117 Although it was night with no

illuminating highway lights, the truck driver had turned off the

113 700 S.W.3d 126, 157-58 (Tex. App.—Dallas 2023).

114 Apodaca v. Willmore, 392 P.3d 529, 544 (Kan. 2017); cf. Wal-Mart

Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (“A licensee is not

entitled to expect that the possessor [of land] will warn him of conditions that

are perceptible to him, or the existence of which can be inferred from facts

within his present or past knowledge.” (quoting Lower Neches Valley Auth. v.

Murphy, 536 S.W.2d 561, 564 (Tex. 1976))).

115 Flowers v. Rock Creek Terrace Ltd. P’ship, 520 A.2d 361, 370-71 (Md.

1987).

116 Id. at 370.

117 Apodaca, 392 P.3d at 532.

40

headlights and left the overturned vehicle without turning on

emergency flashers. 118 The responding officer crashed into the truck

while traveling 104 miles per hour to arrive at the scene. 119 The officer

argued that because it was not possible for him to see the pickup, the

truck “was a known, hidden danger” for which there was a duty to

warn. 120 But the court held that the officer was “fully informed” by the

dispatcher identifying the accident location and that “the particular

danger in this case, a truck blocking the road, was of the type a law

enforcement officer responding to the scene of an accident should be able

to anticipate, in a way that an ordinary citizen might not.” 121

Similar principles apply here. Before arriving, the responding

officers had Juarez’s name, saw a warrant for that name with an

accompanying picture, and knew an off-duty officer was requesting

assistance. When they arrived, they observed that Juarez was detained

albeit unrestrained in the office. Although Painter testified he had not

seen Juarez getting searched, there is no evidence that anyone knew

Juarez had a concealed gun until he pulled it from his pocket and shot

the officers and Painter. Nor do the plaintiffs allege that Painter made

any misrepresentation on which the responding officers could rely to

conclude that Juarez otherwise had been adequately searched. In such

a scenario, a law-enforcement officer should anticipate in a way that an

ordinary citizen might not that a suspect could have a concealed weapon.

118 Id.

119 Id.

120 Id. at 544.

121 Id.

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In this context, we disagree that a fact issue exists that Painter had

knowledge, and an accompanying duty to warn, of a dangerous condition

of which the responding officers were unaware.

The plaintiffs point out that Painter knew Juarez had a can of

mace and a blade on his body. But Painter also knew those items had

been removed when the officers arrived. Although the removed items

along with Juarez’s suspicious behavior would provide an officer with

reasonable suspicion to support a protective frisk, we cannot conclude

that those facts alone would provide a member of the public like Painter

with knowledge of a hidden, dangerous condition. At most, Painter

might have had a suspicion Juarez had a concealed weapon. An

ordinary citizen’s mere suspicion, however, is not knowledge of a

dangerous condition. 122

The court of appeals erred in concluding that what, at most, would

be Painter’s suspicion raises a fact issue that he knew of a dangerous

condition of which he was legally obligated to warn the responding

officers. The case would be different if Painter had seen the gun before

the officers arrived or made a misrepresentation as to the adequacy of

any search. But on the evidence presented, the trial court properly

granted summary judgment in Home Depot’s favor.

122 With the lucid view of hindsight, suspicions at the time of an event

may later assume an air of knowledge. Cf. Telthorster v. Tennell, 92 S.W.3d

457, 463 (Tex. 2002) (in the official-immunity context, cautioning against

viewing the facts “as they appear through the clarity of hindsight”). Long ago,

Homer put it this way: “Once a thing has been done, [even] the fool sees it.”

The Iliad and the Odyssey of Homer, in 3 GREAT BOOKS OF THE WESTERN

WORLD 206 (Mortimer J. Adler ed., Richmond Lattimore trans., 2d ed. 1990).

42

IV. Conclusion

Police officers, as public-safety officers committed to protecting

the common good even in the face of danger, deserve our admiration and

appreciation. And the death or injury of an officer in the line of duty is

always a tragic event. Undoubtedly, those who are accountable should

be held responsible. Juarez has received a sentence of life without

parole and faces civil liability for his horrific conduct. But the plaintiffs

did not raise a fact issue that Seward, Home Depot, or Point 2 Point

should be held legally responsible for the injuries resulting from

Juarez’s actions. We reverse the court of appeals’ judgment and

reinstate the trial court’s judgment.

John P. Devine

Justice

OPINION DELIVERED: May 9, 2025

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