# In re Toro Co. Supreme Court of Texas, No. 25-0749 **In re Toro Co., No. 25-0749, is before the Supreme Court of Texas. Key issue: In light of its May 15, 2026 decision in In re Home Depot, the Court denied Toro's mandamus petition without prejudice so the trial court and parties can revisit Toro's Rule 91a motion to dismiss a wrongful-death suit alleging negligent selection of a motor carrier.** Practice areas: civil procedure ## Key issues - In light of its May 15, 2026 decision in In re Home Depot, the Court denied Toro's mandamus petition without prejudice so the trial court and parties can revisit Toro's Rule 91a motion to dismiss a wrongful-death suit alleging negligent selection of a motor carrier. ## Factual History On October 18, 2022, Michael Denney, driving a tractor-trailer for Werner Enterprises between two facilities of The Toro Company, collided on Artcraft Road with a car driven by Michelle Lira, and Lira and her passenger Blanca Lira were killed (Petition for Writ of Mandamus filed (Relator), PDF pp. 13-14). Werner owned the tractor and employed the driver, and Toro owned the empty trailer (Per Curiam Opinion, PDF p. 1). Toro says there is no dispute that Michelle Lira ignored the traffic signal and turned in front of the truck (Petition for Writ of Mandamus filed (Relator), PDF p. 14). The Lira family plaintiffs first sued Werner and Denney, and later amended to add Toro, the shipper, alleging it negligently selected Werner as its motor carrier by failing to investigate Werner's competence, policies, procedures, and safety record (Petition for Writ of Mandamus filed (Relator), PDF p. 14). ## Procedural History This is an original proceeding for writ of mandamus in a wrongful-death suit pending in El Paso County. Toro moved to dismiss under Texas Rule of Civil Procedure 91a on June 28, 2024, arguing it was a shipper, not the motor carrier, and owed no duty under the federal motor carrier regulations or the common law because Denney was Werner's employee (Response to Petition for Writ of Mandamus Filed (Real Parties in Interest), PDF p. 9). The trial court denied the motion on October 1, 2024, in an order stating that Toro could appeal because the order involved a controlling question of law (Response to Petition for Writ of Mandamus Filed (Real Parties in Interest), PDF pp. 10-11). The Eighth Court of Appeals (El Paso) denied Toro's petition for permissive appeal, because the order did not comply with Rule 168, and then denied mandamus on August 18, 2025 (Petition for Writ of Mandamus filed (Relator), PDF p. 15; Response to Petition for Writ of Mandamus Filed (Real Parties in Interest), PDF pp. 11-12). In this Court, Toro sought mandamus; after it filed, the Court issued *In re Home Depot Inc.* (Tex. May 15, 2026) (No. 25-0317), and on June 12, 2026, it denied the petition without prejudice (Per Curiam Opinion, PDF pp. 1-2). ## Issues Presented Toro presents one issue in two parts (Petition for Writ of Mandamus filed (Relator), PDF p. 11): 1. Whether a shipper that hires a federally licensed, fully insured commercial carrier with the highest federal safety rating can be liable to an injured motorist for the acts of the carrier's driver, whom the shipper neither employed, trained, nor controlled. 2. Whether the trial court abused its discretion, leaving Toro without an adequate appellate remedy, when it denied the Rule 91a motion. The Lira plaintiffs present two issues: whether the trial court clearly abused its discretion, because negligent selection of an independent contractor is long recognized in Texas and was fully pleaded; and whether mandamus is foreclosed by Toro's unreasonable and unexcused delay in seeking a ruling and relief (Response to Petition for Writ of Mandamus Filed (Real Parties in Interest), PDF p. 7). ## Standard(s) of Review A Rule 91a motion is decided on the pleadings alone, without evidence, and dismissal is justified only when the pleaded cause of action has no basis in law or fact (Response to Petition for Writ of Mandamus Filed (Real Parties in Interest), PDF p. 12). Toro says the denial of its Rule 91a motion left it without an adequate remedy on appeal, so mandamus is required (Petition for Writ of Mandamus filed (Relator), PDF p. 13). ## Legal Arguments **Whether a shipper owes a duty in selecting a federally licensed motor carrier.** **Relator (Toro):** The general rule is that one who hires an independent contractor is not liable for the contractor's actions, and an existing duty already runs from motor carriers and their drivers to motorists, so imposing a new duty on the shipper that selects a licensed carrier would have to satisfy the *Phillips* factors and would expose shippers statewide to suit (Petition for Writ of Mandamus filed (Relator), PDF pp. 12-13, 16-17). Federal motor carrier regulations impose no liability on a shipper, and nothing alleges that Werner was not a licensed, insured, qualified carrier; the case is a duty question that Toro says is worthy of this Court's review (Petition for Writ of Mandamus filed (Relator), PDF pp. 12, 16-17). **Real Parties in Interest (Lira plaintiffs):** Texas has long recognized a cause of action for negligent selection of an independent contractor, including a trucking company hired to haul the defendant's cargo, and their petition pleaded every element without pleading themselves out of court, so the claim has a basis in law (Response to Petition for Writ of Mandamus Filed (Real Parties in Interest), PDF pp. 9-10). Their claim does not rest on the federal regulations or a master-servant relationship (Response to Petition for Writ of Mandamus Filed (Real Parties in Interest), PDF p. 10). **Whether mandamus is foreclosed by delay.** **Real Parties in Interest (Lira plaintiffs):** Toro delayed unreasonably: after the court of appeals denied its permissive appeal petition without prejudice on October 31, 2024, it did nothing to obtain a proper order, and it did not seek mandamus until January 7, 2025, and never served its initial disclosures (Response to Petition for Writ of Mandamus Filed (Real Parties in Interest), PDF pp. 9, 11-12). **Relator (Toro), in reply:** Toro urges the Court to decide the case together with *Home Depot*, No. 25-0317, because both involve whether an employer owes a duty to a motorist injured by the driver of an independent contractor it hired, and both plaintiffs argue for a duty that does not and should not exist (Reply to Response (Relator), PDF p. 4). ## Stated Reasons the Court Should Take the Case Toro argued that the duty question is important to Texas jurisprudence, that it recurs whenever a shipper hires a third-party carrier, and that the denial of its Rule 91a motion leaves it without an adequate remedy by appeal (Petition for Writ of Mandamus filed (Relator), PDF pp. 12-13, 16; Reply to Response (Relator), PDF p. 4). ## Practice Area Tags civil-procedure ## Procedural Posture/Vehicle Original proceeding (petition for writ of mandamus) after the Eighth Court of Appeals denied relief; denied without prejudice by per curiam opinion on June 12, 2026, without oral argument (Per Curiam Opinion, PDF pp. 1-2). ## Amicus Involvement None ## Holding The Court did not decide whether a shipper owes a duty in selecting a motor carrier; it denied mandamus without prejudice so the litigants and the trial court can revisit the Rule 91a motion in light of *Home Depot* (Per Curiam Opinion, PDF pp. 1-2). ## Court's Reasoning After Toro filed its petition, the Court issued *In re Home Depot Inc.*, which presented legal arguments substantially similar to those in Toro's dismissal motion and mandamus petition (Per Curiam Opinion, PDF pp. 1-2). The Court concluded that both the litigants and the trial court should have the opportunity to revisit the Rule 91a motion in light of that opinion, citing *In re Central Oregon Truck Co.* and *In re Parks* (Per Curiam Opinion, PDF p. 2). ## Disposition Petition for writ of mandamus denied without prejudice to afford that opportunity (Per Curiam Opinion, PDF p. 2). The Court had stayed trial court proceedings as to Toro on September 19, 2025, and lifted the stay on June 12, 2026. ## Vote Breakdown Per curiam opinion; no separate writings (Per Curiam Opinion, PDF p. 1). --- Source: The SCOTX Report, https://scotxreport.com/cases/25-0749. 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.