Texas Supreme Court Dismisses Negligent Hiring Claim

Takeaway: Like several other states, Texas has a citizens participation act that permits a party to seek early dismissal of a legal action that is based on or in response to that party’s exercise of the right of free speech. Walgreens was able to use the statute to obtain dismissal of a customer’s claim that its employee wrongfully accused her of shoplifting.

A customer was shopping in a Houston Walgreens in 2019 when she was detained in the store on suspicion of shoplifting. The Walgreens employee who called the police suspected that the customer was the same person who had stolen from the store earlier that day. After reviewing surveillance video and determining that the customer was not the thief, the police released her. The customer claimed that the other Walgreens workers in the store had agreed that she was not the thief, but the employee called the police anyway.

The customer sued Walgreens for intentional infliction of emotional distress; negligence; gross negligence; vicarious liability for employee negligence; and negligent hiring, training, and supervision (NHTS). Walgreens moved to dismiss the entire lawsuit under the Texas Citizen Participation Act (TCPA), arguing that the customer’s claims were based on the employee’s alleged false report to the police, which is a communication made in connection with a matter of public concern and is therefore protected under the act. The trial court denied the motion.

A divided court of appeals affirmed in part and reversed in part. The appeals court held that the trial court erred by not dismissing the customer’s claims of intentional infliction of emotional distress, negligence, gross negligence, and vicarious liability for employee negligence because those claims were based on or in response to the exercise of the right of free speech. The appeals court also stated that the plaintiff failed to establish a prima facie case for the elements of each claim.

That left only the NHTS claim, which a majority of the court held was not subject to dismissal under the TCPA because it was not entirely based on or in response to the employee’s exercise of his First Amendment rights in calling the police. Instead, the claim was based on both that exercise and Walgreens’ conduct in hiring, training, and supervising the employee, which occurred before the incident. The majority remanded the case to the trial court so that the customer could pursue her NHTS claim.

Walgreens petitioned the Texas Supreme Court for review. On appeal, the Texas Supreme Court held that the principal issue presented was whether the TCPA applied to the customer’s NHTS claim, because Walgreens had been authorized to file a motion to dismiss that claim. The court first analyzed the history of the TCPA. 

In 2019, the Texas Legislature amended the provision of the TCPA at issue in the case. Prior to that amendment, the statute authorized dismissal of a legal action that was based on, related to, or in response to the exercise of the right of free speech. The amended version narrowed the required nexus between the action and the protected activity by deleting the broad connective term “relates to,” and it authorized a dismissal motion only when the action was based on or in response to a protected activity.

Since the amendment took effect, the courts had not had occasion to elaborate on the required connection between the cause of action asserted and the movant’s exercisable protected right. The Texas courts of appeals variously described the “based on” portion of the standard as requiring that the exercise of protected right be the basis of the claim. In this case, the court of appeals interpreted the TCPA to apply when protected activity was the only part of the legal action, the legal action was solely dependent on proof of protected activity, or the legal action was instituted solely in reaction to protected activity. The Texas Supreme Court found that nothing in the statutory language itself supported these limitations. 

Rather, the court found that the customer’s claims were filed in reaction to the communication by a Walgreens employee, so the NHTS claim was in response to Walgreens’ exercise of the right of free speech and was thus subject to a dismissal motion under the TCPA. Applying the TCPA to the NHTS claim, the court found that the customer had not provided any evidence that Walgreens’ hiring, training, and supervision of the offending employee was deficient. As a result, the Texas Supreme Court dismissed the customer’s NHTS claim against Walgreens.

Walgreens v. McKenzie, Texas, No. 23-0955 (Feb. 20, 2025).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.