# Seward v. Santander

Supreme Court of Texas, No. 23-0704

**Seward v. Santander, No. 23-0704 (Tex. May 9, 2025). Holding: Seward's conduct in responding to a reasonable suspicion of theft in his presence, including issuing the trespass warning and any protective frisk, was within the general scope of his police employment as a matter of law, so he is entitled to dismissal under section 101.106(f); and the Court adopted the public-safety officer's rule, which applies here and leaves Home Depot owing only a duty to warn of known dangerous conditions, which the plaintiffs did not raise a fact issue on.**

Practice areas: governmental immunity, personal injury

## Key issues

- An off-duty police officer working private security is acting within the general scope of his governmental employment, and is entitled to dismissal under the Tort Claims Act's election-of-remedies provision (§ 101.106(f)), when he responds to a reasonable suspicion that a theft is occurring in his presence, because Texas law makes it his duty to prevent the crime.
- The Court adopted the public-safety officer's rule (the "firefighter's rule"): an actor who innocently or negligently creates a peril owes no duty to an on-duty public-safety officer injured by that same peril while engaged in emergency activities, though the rule does not shield more culpable conduct, independent tortious conduct, or a failure to warn of known hidden dangers after the officer arrives.

## Factual History
On April 24, 2018, Dallas police officer Chad Seward was working in uniform as a security guard at a Dallas Home Depot under Home Depot's contract with the private security vendor Point 2 Point Global Security, Inc.; the Dallas Police Department approved the off-duty work and its general orders subject off-duty officers to the same rules as on duty, including taking "immediate action to protect life and property" and responding "to crimes in progress," while barring them from enforcing house rules unless the enforcement is law enforcement activity (Opinion, PDF pp. 3-4). Scott Painter, a Home Depot asset-protection specialist, called Seward about a customer, Armando Juarez, who was concealing store items in a lidded bucket and then hid behind insulation; because Painter had lost sight of him, he told Seward he wanted only to give Juarez a criminal-trespass warning (Opinion, PDF pp. 4-5). Seward found Juarez hiding in a rack, and as the group walked to an office he grabbed Juarez's arm, removed a can of mace and a wallet containing a blade, and, by his account, conducted a protective frisk of the outer clothing; Painter testified that he never saw Juarez searched (Opinion, PDF p. 6). A warrant check returned a "soundalike name," so Seward called for a squad car, and Officers Rogelio Santander Jr. and Crystal Almeida arrived; when Seward relayed through Painter that they should arrest Juarez, Juarez pulled a gun and shot both officers and Painter (Opinion, PDF pp. 6-8). Santander died the next morning, Almeida suffered a traumatic brain injury and partial loss of vision and hearing, and Juarez pleaded guilty to capital murder of a peace officer and received a life sentence without parole (Opinion, PDF p. 8).

## Procedural History
Santander's parents and Almeida sued Seward, Point 2 Point, and Home Depot for wrongful death, survival, and personal injuries under negligence and vicarious-liability theories, focusing on Home Depot's "no touch" policy and on Painter's and Seward's alleged negligence in failing to search, restrain, disarm, and supervise Juarez and in failing to warn the officers (Opinion, PDF pp. 8-9). Seward moved to dismiss under the election-of-remedies provision of the Tort Claims Act, section 101.106(f), and the trial court granted it; the trial court also granted Point 2 Point's and Home Depot's summary-judgment motions (Opinion, PDF pp. 9-10). The Fifth Court of Appeals reversed in part in a fractured decision with three opinions: the lead opinion held a jury could find Seward acted outside his police employment until he contacted dispatch for the warrant check, and held that fact issues precluded summary judgment for Home Depot on the remaining claims, including a duty to warn (Opinion, PDF pp. 10-11). Home Depot and, separately, Seward and Point 2 Point filed petitions for review on October 2, 2023; the respondents filed responses on January 17, 2024, the Court requested merits briefing on March 8, 2024, and it granted both petitions on September 27, 2024 (Docket; Opinion, PDF p. 12). The Court heard argument on December 5, 2024, and decided the case on May 9, 2025 (Docket; Opinion, PDF pp. 1, 43).

## Issues Presented
Seward and Point 2 Point present whether Seward acted as an on-duty police officer during his interactions with Juarez, whether Point 2 Point is entitled to summary judgment because it cannot be liable for Seward's conduct as an on-duty peace officer, and whether Seward's off-duty conduct was tortious at all (Brief on the Merits (Point 2 Point Global Security, Inc., et al), PDF p. 16; Petition for Review #2 (Chad Seward and Point 2 Point Global Security, Inc), PDF p. 13). Home Depot presents whether the court of appeals erred in treating allegations of negligent failure to provide security as "negligent activity" claims despite *Timberwalk*, and whether it misapplied the firefighter's rule, among other issues (Brief on the Merits (Home Depot U.S.A), PDF p. 12; Petition for Review (Home Depot U.S.A., Inc), PDF p. 12). The Court decided two main issues: whether Seward's conduct leading up to the shooting was within the scope of his police employment under the Tort Claims Act, and whether to adopt a common-law rule limiting the duties owed to responding public-safety officers (Opinion, PDF p. 2).

## Standard(s) of Review
A governmental employee's motion for dismissal under section 101.106(f) is in effect an assertion of governmental immunity and is reviewed de novo, as is a hybrid summary-judgment ruling; where both parties present evidence the standards mirror each other, and the Court views the evidence in the light most favorable to the nonmovant to decide whether a material fact issue precludes dismissal or summary judgment (Opinion, PDF pp. 12-13). Whether a duty exists is a threshold question of law in a negligence case (Opinion, PDF p. 24).

## Legal Arguments
**Whether Seward's conduct was within the general scope of his police employment.**

**Petitioners (Seward and Point 2 Point):** From the first moment Seward learned from a reliable source that a crime was in progress he went on duty, because peace officers retain that status around the clock and have a duty to prevent and suppress crime, and the evidence shows he acted as an on-duty peace officer throughout his encounter with Juarez (Brief on the Merits (Point 2 Point Global Security, Inc., et al), PDF pp. 36-37).

**Respondents (Santander, Garcia, and Almeida):** Point 2 Point's position would give a private security guard who is also an off-duty officer retroactive governmental immunity for negligence committed while working for a private employer, and extend that immunity to the private employer; Texas law does not extend governmental immunity to an off-duty officer performing tasks any civilian can perform (Brief on the Merits (Rogelio Santander Sr., et al), PDF pp. 18-19; Opinion, PDF p. 17).

**Whether the public-safety officer's rule applies and bars the claims against Home Depot.**

**Petitioner (Home Depot):** The court of appeals misapplied Timberwalk by treating failure-to-protect allegations as general negligence claims, and it gutted the firefighter's rule by effectively ruling that a suspect's concealed weapon is not a risk inherent in a police encounter but is constructively known by a retailer, which would then have a duty to warn officers of a "dangerous condition" (Brief on the Merits (Home Depot U.S.A), PDF pp. 27-28; Petition for Review (Home Depot U.S.A., Inc), PDF pp. 19-20).

**Respondents (Santander, Garcia, and Almeida):** Home Depot's negligent policies and its employees' negligence in dealing with a known dangerous person caused the shooting; no conflict with Timberwalk exists, the firefighter's rule has never been adopted or applied by this Court, and the court of appeals correctly rejected Home Depot's vicarious-liability and negligent-undertaking arguments (Brief on the Merits (Rogelio Santander Sr., et al), PDF pp. 31-32).

## Stated Reasons the Court Should Take the Case
Home Depot argued that the court of appeals' decision would create confusion for future courts applying *Timberwalk*, would let plaintiffs in all future cases avoid *Timberwalk*'s higher proof standards, and would encourage courts to declare other long-recognized risks of police work not "inherent," forcing retailers to interfere with active police investigations to warn officers of perceived safety risks (Petition for Review (Home Depot U.S.A., Inc), PDF pp. 19-20). Seward and Point 2 Point argued that the court of appeals' fractured decision rested on conflicting views of when an off-duty officer goes on duty, with each of the three justices reaching a different conclusion (Petition for Review #2 (Chad Seward and Point 2 Point Global Security, Inc), PDF pp. 14-15).

## Practice Area Tags
governmental-immunity, personal-injury

## Procedural Posture/Vehicle
Two petitions for review from the Fifth Court of Appeals in an appeal from a section 101.106(f) dismissal and hybrid summary judgments; argued December 5, 2024, and decided May 9, 2025, with a concurring opinion (Opinion, PDF pp. 1, 9-12).

## Amicus Involvement
- [Retail Litigation Center, Inc., Retail Industry Leaders Association, and Texas Retailers Association](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=7e8695d2-27e7-4bc4-aec4-58bebc29bf30&coa=cossup&DT=BRIEFS&MediaID=bfe0fbbf-452d-4389-b91f-cf4bac3e374c) filed an amicus curiae brief at the petition stage on October 13, 2023.
- The same amici filed an [amicus brief on the merits](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=5b742bf8-0c09-424a-a966-36719bcfa7a1&coa=cossup&DT=BRIEFS&MediaID=889e6bfe-0bb3-4742-ac49-c663a80f1115) on July 2, 2024, and a [response to respondents' objection to the amicus brief](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=0777d9e4-596e-4d48-bfbc-82028d327094&coa=cossup&DT=BRIEFS&MediaID=ea6fa999-9e4b-4c5f-aa04-d2135557401e) on September 24, 2024.

## Holding
Seward's conduct in responding to a reasonable suspicion of theft in his presence, including issuing the trespass warning and any protective frisk, was within the general scope of his police employment as a matter of law, so he is entitled to dismissal under section 101.106(f); and the Court adopted the public-safety officer's rule, which applies here and leaves Home Depot owing only a duty to warn of known dangerous conditions, which the plaintiffs did not raise a fact issue on (Opinion, PDF pp. 2, 19-23, 34-35, 38-42).

## Court's Reasoning
**Scope of employment.** Section 101.106(f) requires dismissal of a suit based on conduct within the general scope of the employee's employment that could have been brought against the governmental unit, and the Tort Claims Act defines scope of employment to include "in or about the performance of a task lawfully assigned" by competent authority, assessed objectively without regard to the officer's state of mind (Opinion, PDF pp. 13-15). Under *Garza*, an officer enforcing general laws is acting in the course and scope of his peace-officer employment, while protecting a private employer's property, ejecting trespassers, or enforcing house rules may raise a fact question, but these are guidelines and the inquiry returns to the statutory definition (Opinion, PDF pp. 16-17). Painter's call gave Seward specific articulable facts that supported reasonable suspicion of shoplifting, which triggered his duty under the Code of Criminal Procedure and the department's general orders to prevent or suppress the theft, even though he saw no crime and Juarez had not left the store (Opinion, PDF pp. 18-20). Issuing a criminal-trespass warning under these circumstances was performing that duty, because it would lead to recovery of the merchandise and removal of Juarez; Home Depot and Painter had no right to control Seward's performance of his statutory duties, and co-existing private motivations do not remove conduct from the scope of employment (Opinion, PDF pp. 20-22). The plaintiffs raised no fact issue on the protective frisk, which responded to the mace and blade and which would be within the scope of his employment even if performed negligently, so the suit against Seward must be dismissed (Opinion, PDF pp. 22-23). That holding also disposes of the claims against Point 2 Point and the vicarious-liability claims against Home Depot that depend on Seward's conduct, which the plaintiffs did not challenge in this Court (Opinion, PDF p. 24).

**Adopting the public-safety officer's rule.** The rule began as the "fireman's rule," grounded in premises-liability categories, but courts grew disenchanted with those labels and modern courts root it in public policy and extend it beyond premises liability (Opinion, PDF pp. 25-28). The Court had never decided whether to adopt it, and it joined the majority of jurisdictions, finding three policies compelling: the rule encourages people to call for help without fear of liability, it promotes public trust by avoiding the suspicion that officers risk injury for a tort recovery and the cynicism of officers suing those they served, and the costs of officer injuries are better spread through the public employers, for example through workers' compensation (Opinion, PDF pp. 29-33). It adopted a narrow rule: an actor who innocently or negligently creates a peril that occasions a public-safety officer's presence owes no duty to the officer injured by that same peril while on duty, within the scope of employment, and performing emergency activities; the rule does not absolve conduct more culpable than negligence, shield independent tortious conduct, or apply to conduct after the officer arrives, including a failure to warn (Opinion, PDF pp. 34-35). For a premises owner, the duty owed is no greater than that owed to a licensee: to use ordinary care to warn of a dangerous condition it knows of and the officer does not (Opinion, PDF pp. 35-36).

**Application to Home Depot.** The plaintiffs pleaded only negligence, Home Depot's conduct in detaining Juarez created the peril that occasioned the officers' presence, the risk that a suspect has a concealed weapon is inherent in an officer's responsibilities, and responding to an off-duty officer's request involving a possible warrant arrest was an emergency activity, so the rule applies (Opinion, PDF pp. 36-38). Home Depot's general safety policies do not create a separate duty to responding officers (Opinion, PDF pp. 38-39 n.109). The court of appeals erred in finding a fact issue on a duty to warn, because a hidden danger for an officer differs from that for an ordinary citizen, the officers knew Juarez's name and warrant, knew an off-duty officer was requesting help, and saw Juarez detained but unrestrained, and Painter at most suspected a concealed weapon, which is not knowledge of a dangerous condition (Opinion, PDF pp. 39-42). The case would be different had Painter seen the gun or misrepresented the adequacy of a search (Opinion, PDF p. 42). The Court did not reach Home Depot's other summary-judgment grounds or decide whether the claims were improperly pleaded premises-liability claims (Opinion, PDF p. 12 n.27; PDF pp. 36-37 n.105).

**Concurrence (Justice Busby, joined by Justice Lehrmann).** He joined the opinion but stressed that it does not decide whether a business can avoid vicarious liability for a guard's torts by hiring an off-duty officer, because the plaintiffs conceded that issue was not before the Court; he described how the Tennessee Supreme Court in *White v. Revco* analyzed the question and rejected both a "nature of the act" test and a no-liability rule in favor of agency principles, including the dual-master doctrine, and encouraged future parties to address those considerations (Busby, J., concurring, PDF pp. 1-3, 5-7).

## Disposition
The Court reversed the court of appeals' judgment and reinstated the trial court's judgment (Opinion, PDF p. 43).

## Vote Breakdown
Justice Devine delivered the opinion of the Court; Justice Busby filed a concurring opinion, joined by Justice Lehrmann (Opinion, PDF p. 1).


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Source: The SCOTX Report, https://scotxreport.com/cases/23-0704. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.