No Franchisor Duty Without Control Over Injury‑Causing Hiring Decisions: A Commentary on Massage Heights Franchising, LLC v. Hagman

I. Introduction

In Massage Heights Franchising, LLC v. Hagman, the Supreme Court of Texas sharply circumscribed when a franchisor can be held liable in negligence for criminal acts committed by an employee of a franchisee. The Court held that a franchisor owes no duty of care to a customer injured by a franchisee’s employee unless the franchisor has contractual or actual control over the specific injury‑causing conduct—in this case, the hiring of the massage therapist who committed the assault. General control over brand standards, operations, safety protocols, or training is insufficient.

The Court also rejected a negligent‑undertaking theory against the franchisor, concluding there was legally insufficient evidence that the franchisor undertook to protect the plaintiff in a way that proximately caused her injury. Finally, it declined to recognize any duty on the franchisor’s part to refrain from entering into, or to terminate, franchise agreements with the franchise owner, despite evidence of prior sexual‑misconduct reports at those locations.

The decision is significant for Texas tort law and for franchising more broadly. It:

• Reaffirms and applies the “retained control” doctrine to franchisors in a highly sensitive factual context (sexual assault by a service provider).
• Clarifies that the relevant control is over the specific conduct that caused the injury, not general business or operational control.
• Limits negligent‑undertaking liability for franchisors and other entities that promulgate safety programs or training.
• Signals reluctance to create new duties where an existing duty framework (here, retained control over an independent contractor) already governs.

A. Factual Background in Brief

Mario Rubio, a licensed massage therapist, was hired in 2017 by MH Alden Bridge, LLC, a local franchisee operating under the “Massage Heights” brand. Rubio had an older criminal record—juvenile theft adjudications, several misdemeanor property/evading offenses, and a dismissed aggravated‑robbery charge—but no sexual or recent felony convictions. The State of Texas, after its own background check under the Occupations Code, issued Rubio a massage‑therapy license.

MH Alden Bridge, under a written franchise agreement with Massage Heights Franchising, LLC, conducted its own background check, verified Rubio’s license, and hired him following interviews. The franchise agreement:

• Expressly labeled MH Alden Bridge an “independent contractor” and “sole operator” of the business.
• Placed sole responsibility for employment decisions (including hiring, firing, training, and supervision) and for customer safety on the franchisee.
• Required franchisees to hire only state‑licensed massage therapists and to perform background checks and certain interviews.
• Obligated the franchisor to provide “guidance” and “advice” on standards and procedures, particularly via an Operations Manual.

In July 2017, a customer complained to MH Alden Bridge that Rubio had sexually assaulted her during a massage. That complaint was documented in Rubio’s employment file, but not reported to police. In September 2017, respondent Danette Hagman—who had been a regular customer since 2014—specifically requested Rubio for a massage, unaware of the prior allegation. Rubio sexually assaulted her during the session. He was later criminally prosecuted and convicted.

B. Procedural History

Hagman sued multiple defendants: Massage Heights (the franchisor), MH Alden Bridge (the franchisee), OMG Holdings (the franchisee’s parent), Eric Oliver (OMG’s president), and Rubio. She alleged assault, negligence, negligent undertaking, premises liability, vicarious liability, and gross negligence.

A jury:

• Found all defendants negligent.
• Found Massage Heights liable under a negligent‑undertaking theory.
• Allocated 15% responsibility to Massage Heights.
• Awarded $1.5 million in actual damages and $1.8 million in exemplary (punitive) damages.
• Answered “no” to a specific question whether MH Alden Bridge was “subject to the control of Massage Heights.”

The court of appeals:

• Reversed the exemplary‑damages award under Texas Civil Practice and Remedies Code § 41.005 (limiting exemplary damages for another’s criminal acts).
• But affirmed the compensatory judgment against Massage Heights, holding:
  • Massage Heights owed a duty of reasonable care to customers at franchise locations as a matter of law due to its control over franchise operations; and
  • There was legally sufficient evidence that Massage Heights breached that duty by failing to provide franchisees a list of disqualifying criminal offenses, which allegedly allowed Rubio’s hiring.

The Supreme Court of Texas granted the franchisor’s petition for review, reversed in part, and rendered a take‑nothing judgment in favor of Massage Heights.

II. Summary of the Supreme Court’s Opinion

The Court’s per curiam opinion rests on three core holdings:

1. No duty based on control. Massage Heights did not owe Hagman a duty of care because it did not have a contractual or actual right of control over the particular injury‑causing conduct: MH Alden Bridge’s hiring of Rubio. General control over brand standards and aspects of operations (training protocols, draping methods, customer interactions, reporting procedures) was not enough.
2. No duty to refrain from entering or continuing the franchise relationship. The Court rejected Hagman’s alternate theory that Massage Heights had a duty either not to franchise with Eric Oliver’s entities or to terminate those relationships after learning of prior sexual‑assault reports. That theory did not fit within the established “control over independent contractor” duty framework and was not submitted to the jury as a negligent‑hiring‑of‑independent‑contractor claim.
3. No negligent undertaking. There was legally insufficient evidence that Massage Heights undertook to render protective services to Hagman in a way that increased her risk of harm or on which she or others relied. Safety responsibilities were contractually allocated to MH Alden Bridge, and any alleged failures in training or oversight by Massage Heights were not a proximate cause of the assault.

On this basis, the Court:

• Reversed the portion of the judgment affirming liability against Massage Heights.
• Rendered judgment that Hagman “take nothing” on her claims against the franchisor.
• Left undisturbed the lower courts’ treatment of other defendants (not at issue in this petition) and the earlier reversal of exemplary damages.

III. Detailed Analysis

A. The Central Legal Issues

The opinion addresses three intertwined questions:

1. Duty via control over an independent contractor: When does a party that contracts with an independent contractor (here, a franchisor contracting with a franchisee) owe a duty of reasonable care to third parties injured by the contractor’s operations?
2. Scope of any franchisor duty: Is general control over “operations” and detailed brand standards enough, or must the control relate to the specific activity that caused the injury (here, hiring of an employee with a criminal history)?
3. Negligent undertaking: When a franchisor issues training, manuals, and safety guidelines, does that constitute an “undertaking” to protect customers from criminal acts of employees such that negligent performance can give rise to liability?

The Court resolves these questions by applying settled Texas tort principles—especially the “retained control” doctrine—to the franchise context and by insisting on a tight causal link between the defendant’s control or undertaking and the plaintiff’s injury.

B. Precedents and How They Shape the Decision

1. The Retained‑Control Line: General Contractor / Independent Contractor Cases

The Court draws heavily on longstanding Texas precedents addressing when a premises owner, general contractor, or similar party owes a duty for the acts of an independent contractor:

• Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985): A general contractor normally has no duty to ensure that an independent contractor performs work safely. A duty arises if the general contractor retains or exercises control over the “means, methods, or details” of the independent contractor’s work and fails to exercise that control with reasonable care.
• Koch Refining Co. v. Chapa, 11 S.W.3d 153 (Tex. 1999): Merely giving safety recommendations, or being present to tell workers they are “doing something wrong” and should be safe, does not amount to the level of control that creates a duty. Safety programs are encouraged and are not, by themselves, a basis for liability.
• Dow Chemical Co. v. Bright, 89 S.W.3d 602 (Tex. 2002): Clarifies the two ways to show control:
  1. An express contractual right to control the manner, means, or details of the work; or
  2. Evidence that the party actually exercised such control in practice.
  It also emphasizes that the control must relate to the injury‑causing aspect of the work.
• Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex. 1993); General Electric Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008); Coastal Marine Services of Texas, Inc. v. Lawrence, 988 S.W.2d 223 (Tex. 1999): These cases refine the same point: a general, high‑level right of control over operations is insufficient. The defendant must have control over the specific activity or condition that caused the injury. As the Court quotes:
  “It is not enough to show that the defendant controlled one aspect of [the] activities [in question] if [the plaintiff’s] injury arose from another.” (Moritz, 257 S.W.3d at 214.)
• Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001): Confirms that actual exercise of control (as distinct from contractual right) can create a duty and that disputed fact questions about actual control go to the jury.

These authorities collectively establish a “retained control” framework that the Court explicitly applies to the franchisor–franchisee relationship in this case.

2. The Chan Decision: No New Duty Where Existing Duty Rule Fits

The Court also relies on HNMC, Inc. v. Chan, 683 S.W.3d 373 (Tex. 2024), which held that:

• Courts should not conduct an open‑ended “new duty” analysis under Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990), when an existing, specific duty rule already addresses the type of relationship and facts at issue.
• A non‑possessor of premises can incur a duty only when it undertakes to make the premises safe in a way that satisfies negligent‑undertaking requirements; merely asking others to fix a danger is not such an undertaking.

Here, the Court invokes Chan to:

• Reject Hagman’s request to impose a new, free‑standing duty on franchisors to refrain from entering franchise agreements with owners who may pose a risk.
• Emphasize that the existing retained‑control framework already governs when a party is liable for an independent contractor’s conduct.

3. Read v. Scott Fetzer Co.: Special Franchise‑Like Relationship

Perhaps the most important precedent for franchisor liability is Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998). There, a vacuum manufacturer sold through independent distributors who recruited door‑to‑door salespeople. A salesman sexually assaulted a customer in her home during a sales visit. The Court held the manufacturer could be directly liable, despite using independent distributors, because:

• The manufacturer required in‑home sales demonstrations and controlled the details of the in‑home sales process.
• The nature of the control created specific, foreseeable risks to a vulnerable group (homeowners allowing strangers into their homes).

In Massage Heights, the court of appeals relied heavily on Read to justify imposing a duty on the franchisor. The Supreme Court, however, distinguishes Read and limits its reach:

• In Read, the manufacturer’s control was over the specific activity that created the danger—door‑to‑door, in‑home sales—and it was the manufacturer who mandated that risky mode of operation.
• Here, by contrast, Massage Heights did not control, mandate, or approve MH Alden Bridge’s hiring decisions. The risk flowed from who was hired and retained, not from the general fact that massages were being performed.

Thus, Read is treated as an application of retained‑control principles in a narrow, risk‑creating context, not as a broad rule that franchisors automatically owe duties whenever their business model gives employees special access to customers.

4. Negligent Undertaking: Elephant Insurance Co. v. Kenyon and Related Authority

The Court’s negligent‑undertaking analysis turns on Elephant Insurance Co. v. Kenyon, 644 S.W.3d 137 (Tex. 2022), which clarified the contours of “undertaking” liability under the Restatement (Second) of Torts §§ 323 and 324A. A negligent undertaking occurs when:

1. The defendant undertakes, gratuitously or for consideration, to render services that the defendant knows or should know are necessary for another’s protection; and
2. The defendant’s failure to exercise reasonable care in the undertaking either:
   • (a) increases the risk of physical harm, or
   • (b) the harm results because of the other’s reliance on the undertaking.

In Chan, the Court also emphasized that merely asking another entity (e.g., the hospital in Chan) to make premises safer does not constitute such an undertaking; the undertaking must be to render the relevant protective services itself.

Applying these principles, the Court concludes Massage Heights did not undertake to make the premises safe for Hagman; under the franchise agreement, that obligation was expressly allocated to MH Alden Bridge. Nor was there evidence that Massage Heights’ training or policies increased Hagman’s risk or that Hagman relied upon them.

5. Negligent Hiring of Independent Contractors: A Still‑Open Question

The Court briefly references Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010), which had noted—without resolving—questions about a cause of action for negligent hiring or retention of an independent contractor:

Again, the Court declines to decide that question because no such claim was submitted to the jury here. This leaves open, for another day, what duties might exist when a company selects or retains a dangerous independent contractor (e.g., a franchisee or vendor) as opposed to controlling that contractor’s employees.

C. The Court’s Legal Reasoning

1. Duty as a Threshold Requirement

Under Texas negligence law, duty is a question of law for the court. Without a duty, there can be no negligence liability. The Court reaffirms this basic point, citing Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).

Here, the Court asks: Did Massage Heights owe Hagman any legal duty that could support negligence or negligent‑undertaking liability?

The analysis proceeds in three steps:

1. Was there a duty based on retained control over MH Alden Bridge’s hiring decisions?
2. Was there a duty to refrain from entering into or terminating franchise agreements with Oliver/OMG Holdings?
3. Was there a duty arising from a negligent undertaking to provide protective services for customers?

2. No Contractual Right of Control Over the Injury‑Causing Conduct (Hiring)

The Court first examines the franchise agreement and operations manual to determine whether Massage Heights retained a contractual right of control over hiring.

Key contractual features:

• MH Alden Bridge is designated an “independent contractor” and “sole operator” of the massage business.
• The franchisee is “solely responsible for all employment decisions,” including:
  • hiring,
  • firing,
  • training,
  • supervising,
  • disciplining,
  • record keeping, and
  • personnel policies.
• The franchisee is also responsible for customer safety and security on its premises and for compliance with Texas employment and licensing laws.
• Massage Heights agrees to provide “guidance” and “advice” regarding certain “standards, specifications, processes, procedures, requirements, or instructions,” largely through the Operations Manual.

While the franchisor required franchisees to:

• Hire only state‑licensed massage therapists with no licensing suspensions or reportable licensing offenses; and
• Conduct an oral interview, a practical interview, and a background check via a franchisee‑selected provider;

the agreement does not give Massage Heights authority:

• To select individual employees for hiring or firing;
• To approve or veto particular hires; or
• To dictate the final hiring decision based on the background check.

The Court concludes:

Critically, while Massage Heights could give “guidance and advice” about employment issues and safety, such advisory input is expressly characterized as non‑controlling. Under Koch and Bright, advisory safety guidelines and recommendations—without more—do not create a duty.

3. No Actual Exercise of Control Over Hiring

The Court then considers whether Massage Heights nevertheless actually exercised control over hiring in practice. Two pieces of evidence are especially important:

• The jury specifically answered “no” to whether MH Alden Bridge was “subject to the control of Massage Heights.”
• Hagman did not establish as a matter of law that Massage Heights had in fact directed, approved, or managed Rubio’s hiring or retention, or that its safety instructions increased the risk of assault.

The Court acknowledges that Massage Heights:

• Required background checks for massage therapists.
• Specified draping methods and customer‑interaction protocols.
• Outlined training procedures.
• Developed procedures for reporting and responding to sexual‑assault allegations.

But, echoing Koch and Bright, the Court emphasizes:

And, more fundamentally, none of this amounts to “actual control over hiring decisions—the alleged negligent action connected to Hagman’s injuries in this case.” (Slip op. at 9–10.)

Thus, the Court holds that Massage Heights:

• Had no contractual right of control over hiring; and
• Did not actually exercise control over hiring.

Without such control over the injury‑causing conduct, no duty arises under the retained‑control doctrine.

4. Distinguishing Read v. Scott Fetzer Co.

The court of appeals drew on Read to find a franchisor‑like duty. The Supreme Court pushes back, emphasizing the specificity of the risk in Read:

• The manufacturer in Read “retained control by requiring in‑home sales,” and the duty related directly to how it controlled that dangerous sales process.
• Imposing a duty here merely because Massage Heights required that massages be performed by licensed therapists and provided operational guidelines would be inconsistent with the rule that “the control must relate to the activity that actually caused the injury.”

As the Court explains:

This is one of the opinion’s key doctrinal contributions: it limits the reach of Read and confirms that franchisors are not automatically exposed to negligence liability merely because their business model places employees in close contact with customers, even in sensitive contexts like massage therapy.

5. No Duty to Refrain from or Terminate Franchise Agreements

Hagman advanced an alternative theory: Massage Heights knew about multiple prior sexual‑misconduct reports at franchise locations owned by Oliver/OMG Holdings (including as many as twelve assaults) and therefore had a duty:

• Not to enter franchise agreements with those owners; or
• To terminate those agreements once such risks emerged.

The Court treats this as akin to a “negligent hiring or retention” of an independent contractor (here, the franchisee). It does not adopt that theory, for several reasons:

1. No such claim was submitted to the jury. The jury was explicitly instructed not to consider MH Alden Bridge’s hiring, firing, or training decisions as evidence of Massage Heights’ negligence.
2. Open doctrinal question. As noted, the Court has not definitively recognized or defined a cause of action for negligent hiring or retention of an independent contractor, and it declines to do so in this case.
3. No “new duty” analysis where existing rules apply. Under Chan, a general duty analysis under Phillips is inappropriate because there is already a duty rule—the retained‑control framework—that “takes the factual circumstances at issue into account.”
4. Causation problem. The Court views the proximate cause of Hagman’s injury as MH Alden Bridge’s decision to hire Rubio (plus his own criminal intent), not Massage Heights’ decision to franchise with Oliver. The franchisor had no duty to “use any contractual mechanisms to negate or circumvent its franchisees’ contractual right to make employment decisions unilaterally.” (Slip op. at 11–12.)

The Court concludes:

Thus, there is no freestanding duty to choose “safe” franchisees or to sever franchise arrangements when franchisees mishandle risk, at least under the facts and procedural posture of this case.

6. No Negligent Undertaking by the Franchisor

Hagman also prevailed at trial on a negligent‑undertaking theory. On appeal, Massage Heights challenged the legal sufficiency of the evidence supporting that finding.

The Supreme Court reaches this issue “in the interest of judicial economy,” rather than remanding to the court of appeals. It applies the Elephant Insurance framework:

• Did Massage Heights undertake to render services necessary for Hagman’s protection?
• If so, did it perform negligently in a way that:
  • Increased her risk of harm; or
  • Caused harm because she or others relied on that undertaking?

Hagman contended that Massage Heights:

• Undertook to protect customers by including training and operational standards (meant to prevent harm) in its franchise agreement and operations manual.
• Breached this undertaking by:
  • Failing to train or investigate Oliver and OMG Holdings;
  • Failing to disclose prior sexual‑misconduct allegations at franchise locations; and
  • “Allowing” Rubio to be hired.

The Court rejects this for multiple reasons:

1. No undertaking to keep customers safe. Under the franchise agreement, all safety responsibilities were assigned to MH Alden Bridge. Massage Heights did not undertake to provide or manage on‑site safety measures for customers. As Chan teaches, asking or instructing others to improve safety is not, by itself, an “undertaking” to render protective services.
2. No proximate cause. Even if Massage Heights “sought to train its franchisees to prevent sexual assault,” there is no evidence any failure in that effort was a substantial factor in causing Hagman’s assault. Hagman’s theory was essentially that better training of the franchise owners would have prevented Rubio’s hire—a hiring decision over which Massage Heights had no duty or control. Without control over the hiring decision, training shortfalls are too remote to be a proximate cause of the specific attack.

The Court thus holds:

IV. Impact and Significance

A. Clarifying Franchisor Liability in Texas

The decision is a significant clarification of Texas law on when franchisors can be held directly liable for torts occurring at franchise locations.

Key takeaways for franchisors:

• Independent contractor status has real teeth. When franchise agreements:
  • Expressly designate franchisees as independent contractors;
  • Assign sole responsibility for employment decisions and safety to franchisees; and
  • Limit the franchisor’s role in employment matters to “guidance” or “advice,”
  courts are likely to find no duty owed by the franchisor for injuries caused by franchisee employees—so long as the franchisor does not, in practice, control the injury‑causing conduct.
• Brand standards and safety protocols are not, by themselves, risky. Requiring background checks, mandates for professional licenses, training programs, service protocols, and complaint‑handling procedures does not, without more, create a duty grounded in retained control or negligent undertaking. This reduces the disincentive for franchisors to adopt robust safety measures for fear of expanded liability.
• Control must be “targeted” to the specific risk. Franchisors remain exposed if they:
  • Reserve or exercise the right to approve, veto, or direct specific hires;
  • Dictate mandatory hiring criteria beyond state licensing (e.g., categorical bans that they enforce);
  • Participate directly in scheduling, supervision, or discipline of particular employees; or
  • Mandate specific, inherently risky practices (analogous to required in‑home demonstrations in Read).
  In such scenarios, the required nexus between control and injury‑causing conduct might be satisfied, potentially re‑opening the door to franchisor liability.

B. Consequences for Victims of Assault in Franchise Settings

For plaintiffs injured by employees at franchise locations, Massage Heights may narrow the path for claims against deep‑pocket franchisors:

• Absent evidence that the franchisor controlled the specific hiring, supervision, or day‑to‑day actions of the employee who committed the assault, duty will likely be found lacking under Texas law.
• Claims may necessarily focus on:
  • The franchisee (local operator) under premises liability, negligent hiring/retention/supervision, or negligent response to prior complaints; and
  • The individual perpetrator, who may or may not be collectible.
• Creative theories (such as apparent agency, agency by estoppel, or joint enterprise) were not at issue in this case and thus remain doctrinally open, but the strong emphasis on independent‑contractor status and lack of control suggests courts may scrutinize such theories closely where the documentation and real‑world practices align with an independent‑contractor model.

C. Implications for Contract Drafting and Operational Practice

The opinion offers practical guidance for how franchisors and other principal entities should draft contracts and structure relationships:

• Contract drafting:
  • Expressly label franchisees as independent contractors.
  • Clearly allocate responsibility for:
    • Employment decisions (hiring, firing, training, supervision, discipline);
    • Customer/patron safety on the premises; and
    • Compliance with all applicable employment and licensing laws.
  • Describe franchisor’s role in employment and safety matters as “guidance,” “advice,” or “recommendations,” and avoid language suggesting direct control over specific hires.
• Operational practice:
  • Ensure that actual day‑to‑day practice matches the contract. Courts look beyond labels if the franchisor in fact runs the show.
  • Provide training materials and manuals, but allow franchisees real discretion in implementation, especially in hiring and personnel decisions.
  • Design safety programs that:
    • Set minimum standards franchisees must meet, while leaving franchisees responsible for their own compliance; and
    • Do not involve the franchisor in specific, individualized decisions regarding employees.

D. Negligent Undertaking and Corporate Safety Programs

The Court’s negligent‑undertaking analysis has broader implications beyond franchising:

• Companies that roll out safety initiatives, training, or voluntary support services do not automatically incur additional duties to third parties.
• To create an undertaking‑based duty, a company must:
  • Actually take on the task of protecting the plaintiff in a defined way; and
  • Perform that undertaking negligently in a manner that increases risk or induces reliance.
• Mere coordination, guidance, and instructions to independent entities to improve safety do not qualify as an “undertaking” to provide safety services.

This reinforces a consistent message in Texas law: courts will not penalize entities for trying to improve safety by transforming every safety‑related effort into a potential new duty to third parties.

E. The Unresolved Question of Negligent Hiring of Independent Contractors

The Court again signals that the existence and contours of a claim for negligent hiring or retention of an independent contractor (e.g., a franchisee, general contractor, or vendor) remain unresolved in Texas. By expressly declining to reach that issue, the Court leaves space for future litigation in a different case in which:

• The plaintiff expressly pleads and submits to the jury a negligent‑hiring/retention‑of‑independent‑contractor theory.
• Evidence shows that the principal knew or should have known that the independent contractor posed a particular danger, and that this selection or retention decision was a proximate cause of the injury.

Until such a case squarely presents the question, Massage Heights confirms that plaintiffs cannot repackage disagreements with a principal’s choice of business partners as generic negligence claims when an existing duty framework (retained control) does not support liability.

F. Analytical Discipline: No New Duty Where Existing Rules Apply

Finally, the Court underscores the importance of not expanding duty doctrines loosely. Under Chan, when a well‑developed duty rule (like the retained‑control doctrine) governs a relationship, courts should resist invitations to create overlapping or conflicting duties via generalized policy balancing. This approach:

• Promotes predictability in tort law.
• Protects businesses from unforeseeable expansions of liability based on evolving social expectations.
• Channels policy arguments about broad changes in duty into the legislature rather than the judiciary.

V. Clarifying Complex Legal Concepts

A. Independent Contractor vs. Employee

• An employee works under the control of the employer regarding the details of how the work is done. The employer is generally liable (under respondeat superior) for torts committed by employees in the course of employment.
• An independent contractor controls the details of how the work is performed and is typically responsible for its own employees and operations. The party hiring an independent contractor usually is not liable for the contractor’s negligence, unless it retains control over the particular activity that causes harm.

B. Retained‑Control Doctrine

Under Texas law, a principal who hires an independent contractor will owe a duty to third parties if:

• The principal retains or exercises the right to control the means, methods, or details of the contractor’s work; and
• The retained control relates to the specific activity that caused the injury.

Simply having a general right to oversee or inspect, or to require compliance with safety standards, does not, without more, create such a duty.

C. Duty, Breach, and Proximate Cause

In negligence, the plaintiff must prove:

1. Duty – a legal obligation owed by the defendant to the plaintiff to act with a certain level of care.
2. Breach – failure to exercise that level of care.
3. Proximate cause – the breach was both:
   • a cause in fact (a substantial factor in bringing about the injury); and
   • foreseeable (the type of harm was reasonably foreseeable).
4. Damages – actual harm or loss.

Duty is always decided by the court, not the jury. If the court finds no duty, the case ends, regardless of the jury’s findings on other elements.

D. Negligent Undertaking

Negligent undertaking applies when a person or company voluntarily takes on a task to protect another, even if there was no prior legal duty to do so. The undertaking doctrine can create a new duty if:

• The defendant actually undertakes to provide the protective service; and
• Performs that service negligently, thereby increasing the risk of harm or causing harm because others relied on the service.

In Massage Heights, the Court found that:

• The franchisor did not itself undertake to protect customers from assault (that task was contractually assigned to the franchisee).
• There was no evidence its conduct increased Hagman’s risk or that she relied on any undertaking by the franchisor.

E. The Phillips Duty Factors

In Greater Houston Transportation Co. v. Phillips, the Court identified factors to consider when deciding whether to recognize a new common‑law duty, such as:

• Risk and foreseeability of harm;
• Likelihood of injury;
• Social utility of the defendant’s conduct;
• Burden on the defendant;
• Consequences to the community; and
• Other relevant policy concerns.

Chan and now Massage Heights make clear that courts should not reach this kind of open‑ended balancing if an established, specific duty rule (such as retained control over an independent contractor) already fits the situation.

VI. Conclusion

Massage Heights Franchising, LLC v. Hagman is a significant reaffirmation of the traditional independent‑contractor and retained‑control frameworks in Texas, applied in a modern franchise setting and in the emotionally fraught context of sexual assault by a service provider. The Supreme Court of Texas:

• Held that a franchisor owes no duty to a customer assaulted by a franchisee’s employee absent contractual or actual control over the specific injury‑causing decision—here, the hiring of that employee.
• Refused to impose a new duty on franchisors to avoid or terminate franchise relationships with problematic operators, where such a theory does not align with existing duty rules and was not properly tried as negligent hiring of an independent contractor.
• Clarified that safety guidelines, training, and reporting protocols do not, without more, amount to a negligent undertaking that exposes the franchisor to liability for third‑party criminal acts.

For franchisors, the decision provides a roadmap: carefully drafted agreements that allocate employment and safety responsibilities to franchisees, combined with operational practices that respect that allocation, can significantly limit tort exposure. For plaintiffs, the opinion underscores the evidentiary and doctrinal burden of tying a franchisor’s specific control or undertaking to the precise conduct that caused the harm.

In the broader legal landscape, Massage Heights emphasizes analytical discipline in duty analysis, continuity with the retained‑control line of cases, and caution against expanding negligence liability without a clear, principled basis. It thus stands as an important precedent for franchisor liability, negligent‑undertaking claims, and the ongoing evolution of tort duties in complex business relationships.