713 S.W.3d 394
Tex.2025Background
- Pamela McKenzie was mistakenly detained for shoplifting at a Houston Walgreens in 2019 after an employee wrongfully accused her and called the police.
- After being cleared by police, McKenzie sued Walgreens for multiple claims, including negligent hiring, training, and supervision (NHTS).
- Walgreens sought dismissal of all claims under the Texas Citizens Participation Act (TCPA), arguing the case was based on protected free speech.
- The trial court denied Walgreens' motion to dismiss; the court of appeals dismissed most claims but allowed the NHTS claim to proceed, ruling the TCPA didn't fully apply.
- Walgreens appealed to the Supreme Court of Texas arguing the TCPA should apply to the NHTS claim as well.
- The Supreme Court of Texas granted review and addressed both the applicability of the TCPA and the sufficiency of McKenzie's evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the TCPA apply to claims of negligent hiring, training, and supervision where underlying acts involve protected speech? | NHTS claim not entirely based on protected speech; instead based on Walgreens' hiring/training practices | The employee's tortious act (a communication) is a main ingredient, so TCPA applies | Yes, the TCPA applies to NHTS claims where underlying act involves protected speech |
| Did McKenzie establish a prima facie case of negligent hiring, training, and supervision? | Believed pleadings and evidence were sufficient or at least alleged facts indicating negligence | No evidence for hiring, training, supervision, breach, or proximate cause | No, McKenzie provided insufficient evidence, claim dismissed |
| Do TCPA exceptions for commercial speech or bodily injury apply? | Raised both exceptions late in appellate process, argued bodily symptoms and business context | Exceptions not timely raised; not applicable on facts | Exceptions not preserved or applicable |
| Can McKenzie revive dismissed claims (IIED, etc.) or contest procedure? | Argued appellate error on IIED, and review was premature | Not addressed directly; challenging underlying appellate judgment | McKenzie cannot revive prior claims or challenge procedures absent petition for review |
Key Cases Cited
- Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307 (Tex. 2019) (elaborates on negligent hiring claim requirements and causation)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (sets forth IIED elements under Texas law)
- Brady v. Klentzman, 515 S.W.3d 878 (Tex. 2017) (crime commission is matter of public concern for TCPA)
- Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018) (explains scope of respondeat superior liability)