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
══════════
No. 23-0704
══════════

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”).

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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).

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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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