In Re Home Depot U.S.A., Inc.

Supreme Court of Texas
══════════
No. 25-0317
══════════

In re Home Depot U.S.A., Inc.,
Relator

═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════

Argued March 4, 2026

JUSTICE DEVINE delivered the opinion of the Court.

A young man tragically lost his life when his motorcycle collided
with a tractor-trailer owned and operated by a nationwide commercial
motor carrier. The decedent’s parents and his estate sued not only the
trucking company and its driver, but also the customer whose goods
were in transit at the time of the accident. The plaintiffs claim the
customer is liable for the fatal accident—not because the customer
created the risk, supplied a dangerous or defective instrumentality, or
had control over the driver, the truck, or the premises, but because it
engaged in a commercial transaction with the truck driver’s employer.
Texas law does not impose a duty of care on a passive shipper under the
facts alleged. The plaintiffs’ liability theory is not viable because it
transforms the commonplace act of shipping goods into a basis for
sweeping tort liability untethered from control, conduct, and risk.
Because the trial court should have granted the customer’s motion to
dismiss the plaintiffs’ claims, we conditionally grant mandamus relief
directing it to do so.
“[T]he existence of a legally cognizable duty is a prerequisite to
all tort liability” 1 and “[t]he threshold inquiry in a negligence case.” 2
Without it, there is no claim. When a cause of action lacks a basis in
law, 3 Texas Rule of Civil Procedure 91a authorizes the defendant to
move for dismissal. Dismissal is required when the pleadings do not
entitle the claimant to the relief sought. 4 Whether that standard is met
is a legal question we consider de novo based on the allegations in the
plaintiffs’ live petition, which we must accept as true. 5
The pleadings in this wrongful-death and survival action allege
that Natalio Garcia died because a driver employed by Werner
Enterprises, Inc. ran a red light while operating a Werner-owned
tractor-trailer on a public roadway. Werner is a nationwide commercial
motor carrier subject to federal regulation and oversight by the Federal

1 Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993).

2 Greater Hou. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

3 See id. (“[T]he existence of duty is a question of law for the court to

decide from the facts surrounding the occurrence in question.”); see also
Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017) (explaining
that duty may be determined by viewing the material facts in the light required
by the case’s procedural posture).
4 TEX. R. CIV. P. 91a.1.

5 Id. (requiring the court to take as true the plaintiff’s pleaded facts and

any reasonable inferences); Bethel v. Quilling, Selander, Lownds, Winslett &
Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020) (“We review the merits of a
Rule 91a motion de novo.”).

2
Motor Carrier Safety Administration (FMCSA). 6 Garcia’s parents and
estate sued Werner and its driver for negligence and gross negligence.
The plaintiffs subsequently amended their petition to add the
same negligence claims against Home Depot U.S.A., Inc. No factual
allegations tie Home Depot to the conduct that caused the accident. The
only connection between Home Depot and the accident is that, at the
time of the collision, Werner’s truck was transporting Home Depot’s
goods between stores pursuant to a commercial shipping arrangement.
The pleadings do not allege that Home Depot owned, controlled, or
operated the truck; employed or supervised the driver; directed the
manner of the vehicle’s operation; or supplied any defective or dangerous
instrumentality. Nor do the pleadings allege that the cargo’s nature,
size, weight, or method of loading were unusual, improper, hazardous,
or otherwise caused the truck driver’s failure to “comply with the law
and heed the yellow traffic light, slow down and come to a safe and
complete stop.” To the contrary, they allege the accident occurred
because the driver “ignored the yellow light, then accelerated and ran a

6 The FMCSA, which is a part of the U.S. Department of
Transportation, oversees safety regulations, licensing, vehicle-maintenance
standards, and driver qualifications for companies that operate large
commercial vehicles, like Werner. See 49 U.S.C. §§ 31136, 31502 (authorizing
the establishment and prescription of regulations for the safe operation and
equipment of motor carriers and commercial motor vehicles), 31301–31317
(establishing requirements for commercial driver’s licenses and driver
qualifications to ensure drivers meet established standards for safe operation
of commercial vehicles); 49 C.F.R. pts. 350–399 (Federal Motor Carrier Safety
Regulations), § 390.5 (“For-hire motor carrier means a person engaged in the
transportation of goods or passengers for compensation.”); TEX. TRANSP. CODE
§ 643.001(6) (“‘Motor Carrier’ means an individual . . . or other legal entity that
controls, operates, or directs the operation of one or more vehicles that
transport persons or cargo over a road or highway in this state.”).

3
clear steady red traffic light.” The pleadings describe only the routine
transportation of Home Depot’s goods by a commercial motor carrier.
The plaintiffs nonetheless contend that Home Depot was
negligent in entrusting ordinary cargo to Werner because it knew or
should have known that Werner hired reckless or incompetent drivers.
More specifically, the plaintiffs assert that Home Depot: (1) failed to
screen Werner and its drivers; (2) willfully overlooked Werner’s FMCSA
and Department of Transportation violations; (3) disregarded Werner’s
safety record, which included more than 850 “reportable commercial
vehicle collisions” 7 in the two years preceding the accident; and (4) failed
to independently investigate the fitness of the individual driver who was
hauling Home Depot’s goods. The plaintiffs do not allege, however, that
Werner was unlicensed, unregistered, or otherwise unauthorized to
operate as a motor carrier or that Werner lacked necessary permits or
equipment. And while they broadly charge Home Depot with negligence
in “[s]electing and hiring” Werner “over the 1.1 million other commercial
vehicle carriers,” they do not assert that Werner’s official safety rating
was anything other than satisfactory. 8

7 Whether an accident is “reportable” does not depend on a
determination that the carrier is at fault. See Fed. Motor Carrier Safety
Admin., Frequently Asked Questions (FAQs), COMPLIANCE SAFETY
ACCOUNTABILITY, https://csa.fmcsa.dot.gov/HelpCenter/GetFAQById/1203#
(last visited May 11, 2026) (What crashes are included in the Safety
Measurement System (SMS)?); see also 49 C.F.R. § 390.5T (defining
“accident”).
8 See 49 C.F.R. §§ 385.5, .9 (governing determination of a safety rating

based on consistency with the safety-fitness standard, which includes an
evaluation of regulatory compliance, crash history, and related safety factors),
pt. 385, app. B (explaining the safety-rating process and identifying
“satisfactory” as the highest available safety rating).

4
In a Rule 91a motion to dismiss, Home Depot asserted that the
plaintiffs’ negligence claims fail as a matter of law because, under the
pleaded facts, Home Depot was a mere shipper that owed no duty to the
driving public arising from its commercial transaction with an
independent, federally regulated motor carrier. 9 The trial court denied
the motion, and the court of appeals summarily denied mandamus
relief. 10 Because the pleadings allege no facts giving rise to a duty on
Home Depot’s part, the negligence claims have no basis in law and must
be dismissed.
The plaintiffs’ negligence theory depends on whether Home Depot
can bear liability for failing to prevent the negligence of Werner’s driver.
Such a claim faces an uphill battle because Texas law does not lightly
impose on one party a duty to answer for the conduct of another.
Applicable here are two rules establishing important limits on tort
liability and providing a basic allocation of responsibility to those who
either create risks or control them.

9 Id. §§ 376.2(k) (“Shipper. A person who sends or receives property

which is transported in interstate or foreign commerce.”), 390.5 (“Shipper
means a person who tenders property to a motor carrier or driver of a
commercial motor vehicle for transportation in interstate commerce, or who
tenders hazardous materials to a motor carrier or driver of a commercial
vehicle for transportation in interstate or intrastate commerce.”); TEX. TRANSP.
CODE § 623.001(2) (“‘Shipper’ means a person who consigns the movement of a
shipment.”); Shipper, BLACK’S LAW DICTIONARY, at 1661 (12th ed. 2024)
(“Someone who ships goods to another [or] who contracts with a carrier for the
transportation of cargo.”).
10 727 S.W.3d 510, 511 (Tex. App.—Houston [14th Dist.] 2025).

5
First, we have recognized “time and again” that one generally has
no duty to control the conduct of another. 11 Such a duty may arise in
limited circumstances—when a special relationship exists; when the
defendant has control over the injury-producing actor, instrumentality,
or premises; or when the defendant’s own conduct creates or increases
the risk of harm. 12 No such circumstances are alleged here. According
to the amended petition, Werner was an independent contractor
conducting operations with its own employees and its own equipment on
public roadways. Home Depot undertook no affirmative acts that
created or increased the danger, and nothing about the cargo is alleged
to have done so either. Rather, the accident was caused by the truck
driver’s alleged failure to heed a traffic signal.
Second, the law is settled that one who hires an independent
contractor is generally not liable for the contractor’s torts. 13 Narrow
exceptions apply when the hiring party retains or exercises control over
the details of the work or when a nondelegable duty is imposed by
statute or common law, including when the work involves an inherently
dangerous activity. 14 Control gives rise to liability based on the power
to prevent the work from being done in a dangerous or unsafe manner. 15
When a duty is nondelegable, the employer cannot avoid responsibility

11 HNMC, Inc. v. Chan, 683 S.W.3d 373, 382 (Tex. 2024).

12 See, e.g., Pagayon, 536 S.W.3d at 504; Otis Eng’g Corp. v. Clark, 668

S.W.2d 307, 309-10 (Tex. 1983).
13 Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006).

14 Id. at 795.

15 Id. at 791.

6
by delegating control to an independent contractor. Here, the plaintiffs
have not invoked any exception to the general rule or pleaded facts that
would support one. To justify a departure from the no-duty rule, they
instead frame their theory as one of “direct” liability—negligent
selection of an incompetent motor carrier—as opposed to “vicarious”
liability for an independent contractor’s tortious performance.
Both the premise and the distinction warrant clarification. As an
initial matter, “we have not ruled definitively on the existence, elements,
or scope” of a claim for negligent hiring or retention of either an
employee or an independent contractor. 16 But even if such a claim is
viable, it is no less derivative than vicarious liability. 17 Like negligent
entrustment—a “factually similar” theory—negligent hiring requires
the combined negligence of two actors: the employer’s negligence in
hiring the contractor and the contractor’s subsequent negligent act or
omission. 18 The plaintiffs’ theory in this case goes a step further. Their
claim that Home Depot negligently hired Werner who negligently hired
a negligent driver is derivative of derivative liability. That is liability
twice removed. Even assuming the validity of that theory, Home Depot
had no duty to investigate Werner’s competence because (1) the

16 See, e.g., Walgreens v. McKenzie, 713 S.W.3d 394, 399 (Tex. 2025);

Massage Heights Franchising, LLC v. Hagman, 712 S.W.3d 615, 623 (Tex.
2025); Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, 311 (Tex. 2019);
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010).
17 See Werner Enters. v. Blake, 719 S.W.3d 525, 540 (Tex. 2025).

18 Endeavor Energy, 593 S.W.3d at 311 (quoting Wansey v. Hole, 379

S.W.3d 246, 248 (Tex. 2012)).

7
shipment did not present an unusual risk or hazard and (2) Home Depot
neither controlled the actors nor created the risk that materialized.
Home Depot’s only connection to the fatal accident is as a passive
shipper of unremarkable goods being transported by a federally
regulated motor carrier. The pleadings do not allege that Werner lacked
authority to operate on public roads or—more critically—that it derived
any such authority from Home Depot. To the contrary, Werner was
operating under its own authority, subject to federal oversight.
Likewise, the pleadings fail to identify any conduct by Home Depot that
created or controlled the risk that Werner’s employee would violate a
traffic law. The general risk of that happening was certainly
foreseeable, but Home Depot’s transportation agreement with Werner
did not make it any more so. 19
“When determining whether a negligence duty is owed, the
foreseeability of the risk is ‘the foremost and dominant consideration.’” 20
The facts pleaded here show that any risk to the motoring public existed
independently of Home Depot’s shipment and arose only from Werner’s
conduct as a motor carrier. That matters. If Werner’s authority to
operate as a motor carrier did not come from Home Depot, then Home

19 See Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 149-50 (Tex. 2022)

(explaining that an essential part of the duty inquiry is foreseeability of the
specific danger that the defendant’s conduct poses to the particular plaintiff or
one similarly situated and finding no duty existed where the risk of danger was
unchanged by the defendant’s alleged conduct).
20 United Rentals N. Am., Inc. v. Evans, 668 S.W.3d 627, 639 (Tex. 2023)

(quoting Phillips, 801 S.W.2d at 525); see SmithKline Beecham Corp. v. Doe,
903 S.W.2d 347, 353 (Tex. 1995) (“Foreseeability alone, however, is not
sufficient to create a new duty.” (emphasis added)).

8
Depot cannot be said to have “put” Werner’s trucks on the road in any
legally meaningful sense. Those trucks would be on the road
regardless—carrying Home Depot’s goods, other cargo, or nothing at
all—and neither the shipment nor the identity of the customer altered
the risk posed to other motorists. 21 In this way, Home Depot’s role was
purely incidental to the roadway risks created by Werner’s independent
operations. Accordingly, Home Depot’s engagement of an
FMCSA-regulated carrier to transport nonhazardous freight did not
give rise to a common-law duty of care to the decedent.
That allocation of responsibility is consistent with the regulatory
framework applicable to interstate motor carriers. Under FMCSA
regulations, motor carriers are subject to federal requirements
governing operating authority, insurance, driver-qualification
standards, hours-of-service rules, and safety compliance. 22 Those
obligations are imposed directly on a carrier that holds itself out as
providing transportation in interstate commerce. 23 The plaintiffs’
pleadings say nothing about Werner’s licensure status. The omission of
that easily verifiable fact is conspicuous but ultimately irrelevant.
Silence does not support an inference that Werner was operating

21 Cf. Elephant Ins., 644 S.W.3d at 150 (observing that the danger of

getting hit while standing on the side of the road was “no more or less
foreseeable because photographs [were] being taken”—the risk arose from
where the victim was, not what the victim was doing).
22 See supra note 6.

23 See, e.g., 49 U.S.C. § 13901 (requiring registration of motor carriers);

49 C.F.R. §§ 390.3(e), 391.11 (imposing duties on motor carriers regarding
driver qualifications and safety compliance).

9
unlawfully, 24 and Rule 91a does not permit courts to infer misconduct
absent supporting factual allegations. 25 In any event, the pleadings
themselves confirm that Werner’s safety fitness is regulated and
monitored at the federal level. Where, as here, the cargo poses no
inherent risk, private parties should not be required to duplicate that
comprehensive federal safety regime or qualitatively evaluate and rank
the safety fitness of more than a million regulated carriers before
engaging in routine commerce. Such a duty would be neither practical
nor workable. 26 Instead, a shipper of such cargo should ordinarily be
entitled to rely on the carrier to conduct business lawfully and to utilize
proper equipment. 27
Of course, a shipper may incur liability for its own negligence
even if the motor carrier is subject to nondelegable statutory or

24 Cf., e.g., Pagayon, 536 S.W.3d at 504 (holding that the existence of a

duty is determined from the facts of the occurrence as alleged); Prudential Ins.
Co. of Am. v. Uribe, 595 S.W.2d 554, 562-63 (Tex. 1979) (explaining that
wrongful conduct is not presumed and evidence of one type of wrongful conduct
does not create a presumption of engagement in other wrongful conduct).
25 See TEX. R. CIV. P. 91a.1 (“A cause of action has no basis in law if the

allegations, taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought.”).
26 See Otis Eng’g, 668 S.W.2d at 309 (explaining that the existence of a

duty is informed by “the risk, foreseeability, and likelihood of injury weighed
against the social utility of the actor’s conduct, the magnitude of the burden of
guarding against the injury and consequences of placing that burden on the
[defendant]”).
27 We express no opinion as to any common law duties arising from the

shipment of cargo that presents an unusual hazard or risk to other highway
users. See MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 495-99 (Tex.
2010) (holding that federal minimum safety standards defined a floor without
preempting state common law rules).

10
regulatory duties. 28 But to the extent the plaintiffs read United Rentals
North America, Inc. v. Evans 29 as supporting a shipper’s general duty of
care to the motoring public, their reliance on that case is misplaced.
United Rentals did not involve a passive shipper of ordinary goods.
Rather, the shipper’s own conduct—loading oversized equipment onto
an incompatible trailer—created a risk of harm to motorists on public
roads. Transportation of oversized loads requires a specialized trailer
and a special permit, but no permit was secured. 30 Then, due to a mix-up
about which motor carrier was engaged to transport that equipment, the
shipper’s employees erroneously loaded the freight onto a regular
trailer. 31 The shipper discovered its employees’ error but failed to notify
the motor carrier. 32 While in transport, the equipment struck a
low-clearance overpass, and a motorist was crushed by the falling
debris. 33 We held that the shipper bore a duty to highway motorists that
could support liability because, “in general, a party who takes
affirmative acts that create a danger on a public highway can be held
responsible for the results of those actions, along with other responsible

28 See United Rentals, 668 S.W.3d at 639-40 (“[T]he mere existence of a

statutory duty enforceable against the trucking company [does not]
automatically eviscerate[] all other parties’ common law duties that might
have arisen depending on the facts.”).
29 Id.

30 Id. at 632.

31 Id. at 632-33.

32 Id. at 633.

33 Id.

11
actors.” 34 Nothing of the sort is alleged here, so that principle does not
apply.
Home Depot’s goods were but a passenger: onboard but
uninvolved in the accident. “[I]t may be said generally, as a matter of
law, that a mere bystander who did not create the dangerous situation
is not required to . . . prevent injury to others.” 35 It follows then that a
customer with ordinary cargo does not undertake a duty to prevent the
independent motor carrier’s torts simply by engaging it to transport that
freight. Because that is all that happened here, the trial court must
vacate its order denying the Rule 91a motion and dismiss the claims
against Home Depot. 36 A writ of mandamus will issue only if it fails to
do so.

John P. Devine
Justice

OPINION DELIVERED: May 15, 2026

34 Id. at 639 (internal quotation marks omitted).

35 Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000) (quoting

SmithKline, 903 S.W.2d at 353).
36 See In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex.

2021) (orig. proceeding) (“Mandamus relief is appropriate when the trial court
abuses its discretion in denying a Rule 91a motion to dismiss.”); In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding)
(noting that discretionary relief may be appropriate when necessary to “spare
private parties and the public the time and money utterly wasted enduring
eventual reversal of improperly conducted proceedings”).

12