Danette Hagman was sexually assaulted in September 2017 by Mario Rubio, a massage therapist employed by MH Alden Bridge, LLC, a franchisee of Massage Heights Franchising, LLC.¹ Rubio had obtained a massage-therapy license in March 2017 after the state-mandated background check, with a record of juvenile theft pleas, misdemeanor convictions for trespass, burglary of a vehicle, and evading arrest, and a dismissed aggravated-robbery charge, but no sexual or felony offenses.² MH Alden Bridge hired him in May 2017 after verifying his license, running its own background check, and conducting a practical interview.³ It operated under the Massage Heights brand under a Franchise Agreement and an Operations Manual; the agreement made it an independent contractor solely responsible for all employment decisions and for customer safety, subject to conditions that therapists be licensed and undergo interviews and a background check, and obligated Massage Heights to provide "guidance" and "advice" on standards and procedures.⁴ Hagman had been a regular customer since 2014, and she did not know that in July 2017 another client had complained to the franchise that Rubio sexually assaulted her, a report that was in his employment file.⁵

Hagman sued MH Alden Bridge, Massage Heights, Rubio, OMG Holdings (owner of MH Alden Bridge), and its president, Eric Oliver, for assault, negligence, negligent undertaking, premises liability, vicarious liability, and gross negligence.¹ The jury found all defendants negligent and found a negligent undertaking by Massage Heights, attributed 15 percent of the responsibility to it, awarded $1.5 million in actual and $1.8 million in exemplary damages, and answered "no" when asked whether MH Alden Bridge was subject to Massage Heights' control.² The Fourteenth Court of Appeals overturned the exemplary damages under Civil Practice and Remedies Code section 41.005 but otherwise affirmed, holding that Massage Heights owed a duty as a matter of law through its control of franchise operations and that its failure to give franchisees a list of disqualifying offenses supported the negligence finding.³ Massage Heights petitioned for review on February 9, 2024; the Court requested merits briefing on June 21, 2024, and decided the case per curiam on May 2, 2025, without oral argument.⁴

Petition for review from the Fourteenth Court of Appeals after a jury trial; decided per curiam without oral argument under Rules of Appellate Procedure 59.1 and 60.2(c).⁵

Massage Heights presents whether the court of appeals erred in finding that a franchisor owes a customer a duty, and breached it by failing to provide a list of disqualifying offenses, despite the jury's no-control finding and the agreement's assignment of hiring to the franchisee, whether such a duty is justified under the Phillips factors, and whether Rubio's criminal act breaks the chain of causation.¹ Hagman presents whether the court of appeals properly recognized that Massage Heights had a duty to exercise reasonable care to protect customers from sexual abuse, and, as an alternative ground for affirmance, whether it had a duty to terminate Oliver's franchises given the number of incidents at them.² The Court decided whether Massage Heights owed a duty regarding Rubio's hiring or regarding franchising, and whether the negligent-undertaking finding has legally sufficient evidence.³

The existence of a duty is a threshold question of law, and whether a contract gives a right of control is generally a question of law.¹ The Court reached the legal-sufficiency challenge to the negligent-undertaking finding in the interest of judicial economy.²

Whether the franchisor owed Hagman a duty.

Petitioner (Massage Heights): The court of appeals disregarded the jury's no-control finding and created a new duty in the franchisor-franchisee relationship that conflicts with Texas law, particularly in a regulated industry; the franchise agreement gave the franchisee control over hiring, vetting, and supervising licensed therapists, and no Texas case has extended a franchisor's duties so far.¹ In reply it argues that the court of appeals' holding is not limited to massage franchises and bypasses the settled framework for the duties of contractors.²

Respondent (Hagman): The court of appeals properly recognized a duty because Massage Heights controlled franchise operations through its manual, and its policies were inadequate despite 54 reported incidents of sexual misconduct at franchises in the five years before the assault; alternatively, Massage Heights should have terminated Oliver's franchises, including Alden Bridge, long before Rubio was hired.³

Massage Heights argued that the Court has been reluctant to recognize new tort duties and that the court of appeals created a new duty for franchisors contrary to Texas statutes and precedent, raising questions about how the Court approaches new duties in highly regulated contexts.¹ Hagman responded that, because of their special characteristics, massage-spa franchises have different duties than other franchises and the court of appeals properly applied existing law.²

• International Franchise Association filed an amicus curiae brief on May 31, 2024, at the petition stage.
• International Franchise Association filed an amicus curiae brief on December 10, 2024.
• Texas Association Against Sexual Assault filed an amicus curiae brief on December 17, 2024.

Holding

Massage Heights had neither a contractual right of control nor actual control over its franchisee's hiring of Rubio, so it owed Hagman no duty on that ground; it owed no duty to refrain from, or to terminate, the franchise agreement with MH Alden Bridge; and no legally sufficient evidence supports the negligent-undertaking finding.¹

Reasoning

Control. A general contractor ordinarily owes no duty to ensure an independent contractor safely performs its work, but it may owe one when it controls the work; the control must relate to the specific activity that caused the injury, here Rubio's hiring, and a general right of control over operations is not enough.² The Franchise Agreement made the franchisee "solely responsible for all employment decisions," including hiring and supervision, and responsible for customer safety, with only a right to give guidance and advice, so Massage Heights had no contractual right of control over hiring.³ The jury found no control, and Hagman did not prove as a matter of law that Massage Heights actually controlled hiring or that its safety guidelines, such as requiring background checks, specifying draping and training methods, and adopting protocols for reporting assault allegations, unreasonably increased the risk of assault.⁴ Read v. Scott Fetzer is distinguishable because the manufacturer there retained control over in-home sales, and requiring the hiring of licensed therapists is not control over the specific injury-causing conduct.⁵

Franchising. Hagman's alternative argument, that Massage Heights should have refused or terminated the franchise agreement, resembles a negligent hiring or retention claim that was not presented to the jury, which was told not to consider the franchisee's hiring decisions as evidence of Massage Heights' negligence; a Phillips analysis is improper where an existing duty rule covers the situation, and the only plausible proximate cause besides Rubio's criminal intent was the franchisee's hiring decision, which Massage Heights did not control.⁶

Negligent undertaking. An undertaking requires services the defendant knows are necessary for another's protection, and asking others to reduce dangers is not an undertaking; all safety responsibilities were contractually assigned to the franchisee, and there is no evidence that any failure to train proximately caused the assault, because her theory depends on control over hiring that Massage Heights lacked.⁷

Disposition

Without hearing oral argument, the Court granted the petition for review, reversed the court of appeals' judgment in part, and rendered judgment that Hagman take nothing on her claims against Massage Heights.⁸

Vote Breakdown

Per Curiam Opinion

Joined by Blacklock, C.J., and Bland, Boyd, Busby, Devine, Huddle, Lehrmann, Sullivan, and Young, JJ.