Massage Heights Franchising, LLC v. Danette Hagman

Supreme Court of Texas
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No. 23-0996
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Massage Heights Franchising, LLC,
Petitioner,

v.

Danette Hagman,
Respondent

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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM

Respondent Danette Hagman was sexually assaulted by Mario
Rubio, a massage therapist employed by MH Alden Bridge, LLC, a
franchisee of petitioner Massage Heights Franchising, LLC (“Massage
Heights”). Hagman sued Massage Heights, MH Alden Bridge, and other
parties, alleging claims including negligence, negligent undertaking,
and gross negligence. The jury found all defendants negligent, found a
negligent undertaking by Massage Heights, attributed 15 percent
responsibility to Massage Heights, and awarded Hagman both actual
and exemplary damages. The court of appeals reversed the exemplary
damages award but otherwise affirmed the trial court’s judgment,
concluding there was legally sufficient evidence that Massage Heights
was negligent in failing to provide a list of disqualifying offenses to its
franchisees, allowing MH Alden Bridge to hire Rubio despite his
criminal background.
We conclude that unlike the other defendants, Massage Heights
did not owe Hagman a duty of care. The court of appeals therefore erred
in affirming the judgment against Massage Heights based on the jury’s
negligence finding. We also hold that no evidence supports the jury’s
negligent undertaking finding. We therefore reverse the court of
appeals’ judgment in part and render judgment that Hagman take
nothing from Massage Heights.

BACKGROUND

Rubio obtained a massage therapy license in March 2017 after
completing the required training and passing a state-mandated
background check that required him to disclose any history of crimes
that could render him ineligible for a license. At the time, Rubio had a
criminal record: he pleaded “no contest” to delinquent conduct as a
juvenile for theft in 2006 and 2007; he pleaded guilty to misdemeanors
for trespass to a habitation, burglary of a vehicle, and evading arrest in
2008 and 2009; and he was charged with aggravated robbery in 2010,
though that charge was later dismissed. Because the offenses were at
least seven years old and Rubio had no sexual or felony offenses in his
criminal history, however, the State issued him a license as permitted
by statute. 1

1 See TEX. OCC. CODE §§ 53.021-.023.

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Several months later, MH Alden Bridge hired Rubio as a massage
therapist. The background check it performed revealed the above record
but no crimes or criminal allegations of a sexual nature.
MH Alden Bridge offered massage services to the public under the
“Massage Heights” branding pursuant to a Franchise Agreement it
executed with Massage Heights, as well as an Operations Manual
incorporated into the Agreement by reference. The Franchise
Agreement provided that MH Alden Bridge was an independent
contractor with sole responsibility for all employment decisions, subject
to two conditions: all massage therapists had to (1) be licensed by the
State, without any suspensions or licensing offenses reported, and
(2) undergo an oral interview, a practical interview, and a background
check by MH Alden Bridge’s selected third-party provider. The
Agreement also provided that MH Alden Bridge was solely responsible
for customer safety and security on its premises as well as compliance
with Texas laws regarding hiring, training, and supervising therapists.
Conversely, the Agreement obligated Massage Heights to provide
guidance and advice about certain “standards, specifications, processes,
procedures, requirements or instructions,” particularly through the
Operations Manual.
While operating under the Franchise Agreement, MH Alden
Bridge hired Rubio in May 2017 after verifying Rubio’s license,
conducting its own background check, and performing a practical
interview of Rubio. Hagman had been a regular customer at the
franchise since 2014. On the day of the assault in September 2017, she
had specifically requested Rubio as a massage therapist, unaware that

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another client had previously complained to MH Alden Bridge that
Rubio sexually assaulted her during a massage in July 2017. That
customer never reported the incident to the police, but Rubio’s
employment file contained a report of the previous assault. After Rubio
assaulted Hagman, she reported the incident to the manager of MH
Alden Bridge. Rubio was later charged and fled the country but was
ultimately apprehended and convicted upon his return.
Hagman sued MH Alden Bridge, Massage Heights, Rubio, OMG
Holdings (owner of MH Alden Bridge), and Eric Oliver (president of
OMG Holdings), alleging claims of assault, negligence, negligent
undertaking, premises liability, vicarious liability, and gross negligence.
The jury found all defendants negligent and found a negligent
undertaking by Massage Heights, attributed 15 percent responsibility
to Massage Heights, and awarded Hagman $1.5 million in damages and
$1.8 million in exemplary damages. The jury also answered “no” when
asked whether MH Alden Bridge was subject to the control of Massage
Heights.
The court of appeals overturned the exemplary damages award
based on Section 41.005 of the Civil Practice and Remedies Code, which
prohibits such damages for the criminal acts of another. 679 S.W.3d
298, 301-02 (Tex. App.—Houston [14th Dist.] 2023). But the court
affirmed the remainder of the trial court’s judgment, holding that
Massage Heights owed a duty of reasonable care to customers at
franchise locations as a matter of law due to its control over the
franchisee’s operations. Id. at 305. The court also held that Massage
Heights’ failure to provide a list of disqualifying offenses to its

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franchisees, allowing the hiring of therapists with criminal backgrounds
similar to Rubio’s, supported the jury’s finding of a breach of duty that
caused Hagman’s damages. Id. at 306. This petition followed.

ANALYSIS

I. Massage Heights did not control Rubio’s hiring and thus
owed no duty.

A threshold legal requirement for negligence liability is that the
defendant owes the plaintiff a duty. Kroger Co. v. Elwood, 197 S.W.3d
793, 794 (Tex. 2006). Here, the Franchise Agreement refers to MH
Alden Bridge as an “independent contractor” of Massage Heights. We
have addressed in various contexts whether a defendant—such as a
general contractor or premises owner—has sufficient control over a
purported independent contractor to give rise to a duty of reasonable
care. These decisions help frame our duty inquiry here. See HNMC,
Inc. v. Chan, 683 S.W.3d 373, 381 (Tex. 2024) (explaining that new duty
analysis is unnecessary “where there is a duty rule that takes the factual
circumstances at issue into account”).
A general contractor typically does not have a duty to ensure that
an independent contractor safely performs his work. Koch Refin. Co. v.
Chapa, 11 S.W.3d 153, 155 (Tex. 1999). But when the general contractor
has sufficient control over the subcontractor’s work, the general
contractor may be held liable for injuries resulting from its failure to
exercise reasonable care in supervising the subcontractor’s activities.
Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985).
The court of appeals held that Massage Heights owed a duty to
MH Alden Bridge’s customers as a matter of law because it “controlled,”

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through the Operations Manual, “the minutia of its franchise locations
and of the work performed by the masseuses.” 679 S.W.3d at 305. This
holding is flawed because it focuses on a “general right of control over
operations,” not on whether Massage Heights “had specific control over”
the “alleged . . . defects that led to [the plaintiff’s] injury”: here, Rubio’s
hiring. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993). 2 “[I]t is
not enough to show that the defendant controlled one aspect of [the]
activities [in question] if [the plaintiff’s] injury arose from another.”
Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008). Instead, the
control “must relate to the activity that actually caused the injury.”
Coastal Marine Servs. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226
(Tex. 1999).
With this focus in mind, we consider whether Massage Heights
had control over the injury-causing conduct. Control may be
demonstrated either by an explicit contractual provision or by evidence
of actual exercise of control. Dow Chem. Co. v. Bright, 89 S.W.3d 602,
606 (Tex. 2002). We examine each in turn.

A. Contractual right of control

One party may owe a duty of care regarding another party’s work
if it has a contractual right to control the means, methods, or details of
that work. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999).
Whether a contract gives a right of control is generally a question of law.
See Bright, 89 S.W.3d at 606. Merely retaining or exercising a general

2 The court of appeals’ analysis of the breach and proximate-causation

elements of Hagman’s negligence claim against Massage Heights focused on
Rubio’s hiring. 679 S.W.3d at 306-07.

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right to recommend a safe manner to perform their work is insufficient
to impose a duty. Koch, 11 S.W.3d at 155 (citing RESTATEMENT (SECOND)
OF TORTS § 414 cmt. c. (AM. L. INST. 1965)).

In this case, the Franchise Agreement expressly designated MH
Alden Bridge as an “independent contractor” and the “sole operator” of
its massage business. The Agreement made MH Alden Bridge “solely
responsible for all employment decisions,” including hiring, firing,
training, supervising, disciplining, record keeping, and personnel
policies. It specified that this responsibility remained with MH Alden
Bridge even if it received advice from Massage Heights on these matters.
The Franchise Agreement, along with the Operations Manual, also
specifically assigned to MH Alden Bridge the responsibility for customer
safety.
The Agreement contemplated that Massage Heights would
provide “guidance” and “advice” regarding certain “standards,
specifications, processes, procedures, requirements, or instructions,”
which were set forth in the Operations Manual and other regularly
updated written materials. The Manual and Agreement delineated
processes for training massage therapists, their interactions with
clients, and the manner in which services were to be performed.
Furthermore, the Agreement imposed upon franchisees the obligation
to adhere to Massage Heights’ requirements regarding product sales,
service offerings, advertising, operational techniques, and marketing
strategies.
The Franchise Agreement, by its terms, assigned control over
hiring—the very activity that led to Hagman’s injuries—to MH Alden

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Bridge rather than Massage Heights. Massage Heights did not have a
contractual right to control the hiring process, as the Agreement
explicitly designated the franchisee as the independent contractor
responsible for all employment decisions, including hiring, firing,
training, and supervision of employees. Although Massage Heights had
the right to offer guidance and advice concerning operational standards,
that is insufficient to support a duty. See id. The franchisee retained
full responsibility for these matters, notwithstanding any advice or
recommendations provided by the franchisor. Accordingly, we conclude
Massage Heights did not have a contractual right to control MH Alden
Bridge’s hiring of Rubio.

B. Actual exercise of control

A defendant who actually exercises control over a contractor’s
work also owes a duty of care regarding the safe performance of the work
controlled. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex.
2001). As discussed above, the control exercised must relate directly to
the injury caused by the negligence. Elliott-Williams, 9 S.W.3d at 804.
Merely exercising or retaining a general right to recommend a safe
manner for the independent contractor’s employees to perform their
work is insufficient to impose a duty. Koch, 11 S.W.3d at 155. Evidence
of past safety instructions does not, on its own, establish the requisite
degree of control necessary to create a duty so long as the promulgation
of safety requirements and procedures did not unreasonably increase
the likelihood or severity of injury. Id. at 156. When there are disputed
facts regarding the actual exercise of control, that question should be
resolved by a jury. Lee Lewis Constr., 70 S.W.3d at 783.

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Here, the jury failed to find that MH Alden Bridge was subject to
Massage Heights’ control, and Hagman has not proven as a matter of
law that Massage Heights actually controlled Rubio’s hiring or that its
safety instructions unreasonably increased Hagman’s risk of injury. In
Koch and Bright, we held that merely showing a party was present to
tell its independent contractor’s employees they were “doing ‘something
wrong’” and to remind them to perform the job safely is insufficient to
establish control. Bright, 89 S.W.3d at 608 (quoting Koch, 11 S.W.3d at
155). Such actions do not demonstrate that the independent contractor
was not free to perform its work in its own manner.
Here, Massage Heights did provide certain safety guidelines, such
as requiring franchisees to conduct background checks on potential
massage therapists, controlling the draping method they used,
specifying how they should be trained, and detailing how they should
interact with clients. Additionally, Massage Heights implemented
protocols designed to improve and coordinate franchisees’ reporting and
responses to sexual assault allegations. But there is no evidence that
these guidelines unreasonably increased the risk of assaults.
The court of appeals reasoned that Massage Heights directed the
order of work and controlled the means, methods, and details of MH
Alden Bridge’s operations by providing guidance and training materials
to franchisees and by dictating the order in which the franchisee’s
therapists were to perform their work and carry out appointments with
customers. 679 S.W.3d at 305. None of this amounted to “actual control”
over hiring decisions—the alleged negligent action connected to
Hagman’s injuries in this case.

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The court of appeals also relied on our decision in Read v. Scott
Fetzer Co., 990 S.W.2d 732 (Tex. 1998), for the proposition that certain
franchisors may have a duty to investigate a prospective employee when
that employee has special access to a vulnerable group. In Read, a
vacuum manufacturer sold exclusively to independent distributors, who
were required to recruit salespeople to sell vacuums door-to-door
through in-home demonstrations. Id. at 733-34. A customer was
sexually assaulted by one of these door-to-door salesmen and sought to
sue the manufacturer. Id. at 734. We held that the vacuum
manufacturer was directly liable despite using an independent
contractor because the manufacturer retained control over the details of
the sales process in homes and thus had a duty to exercise that control
reasonably. Id. at 736.
Unlike in Read, as explained above, Massage Heights did not
have either the right of control or actual control over the hiring of
employees. In Read, the manufacturer “retained control by requiring
in-home sales.” Id. Imposing a duty on massage franchising companies
based on the notion that they retain control over their franchisees
simply by requiring them to hire licensed massage therapists to perform
massages on customers would be inconsistent with our precedents
requiring proof of control over the specific injury-causing conduct. Read
thus provides no basis for holding Massage Heights liable for Hagman’s
injuries.

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II. Massage Heights had no duty to refrain from entering into
a franchise agreement with MH Alden Bridge.

Hagman presents an alternative argument, which the court of
appeals did not reach, that Massage Heights owed her a duty either to
refrain from entering into or to terminate franchise agreements with
Eric Oliver’s franchise locations, including MH Alden Bridge. Hagman
points to evidence presented at trial indicating that Massage Heights
had received prior reports of sexual misconduct at franchise locations,
that executives were aware of the risk of sexual assault, and that
Massage Heights had received reports of twelve assaults at Oliver’s
franchise locations specifically.
This argument appears to be akin to a negligent hiring or
retention claim. This Court has not ruled definitively on the existence,
elements, or scope of such a claim. See Waffle House, Inc. v. Williams,
313 S.W.3d 796, 804 n.27 (Tex. 2010). Nor must we do so here because
no such claim was presented to the jury. Instead, the jury was
instructed not to consider MH Alden Bridge’s decisions regarding hiring,
firing, or training as evidence of Massage Heights’ negligence.
Hagman also argues for the recognition of a new duty under the
factors we identified in Greater Houston Transportation Co. v. Phillips,
801 S.W.2d 523, 525 (Tex. 1990). But as noted above, there is already a
duty rule that contemplates this case’s factual situation, so a Phillips
analysis would be improper. Chan, 683 S.W.3d at 381. And as we have
explained, the existing rule requires that “the control must relate to the
injury the negligence causes.” Bright, 89 S.W.3d at 607. Nothing
suggests that Massage Heights was obligated to use any contractual
mechanisms to negate or circumvent its franchisees’ contractual right to

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make employment decisions unilaterally. Aside from Rubio’s own
criminal intent, the only plausible proximate cause of the assault was
MH Alden Bridge’s decision to hire Rubio, which Massage Heights did
not control. Hagman’s alternative theory improperly hinges on a form
of control that is not causally connected to the injury.
For these reasons, we conclude as a matter of law that the jury’s
negligence finding cannot support a judgment against Massage Heights.

III. There is legally insufficient evidence to support a finding
of negligent undertaking.

Hagman also obtained a jury finding that Massage Heights is
liable for her injuries under a theory of negligent undertaking. Although
the court of appeals did not reach Massage Heights’ legal sufficiency
challenge to this finding, we do so in the interest of judicial economy.
Baty v. Futrell, 543 S.W.3d 689, 697 (Tex. 2018).
A negligent undertaking occurs when a defendant undertakes,
gratuitously or for consideration, to render services that it knows or
should know are necessary for another’s protection and either (1) the
failure to exercise reasonable care increases the risk of physical harm or
(2) harm results because of the other’s reliance on the undertaking.
Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 151 (Tex. 2022). Hagman
argues that Massage Heights undertook a duty to protect her by way of
the Franchise Agreement with MH Alden Bridge, which included
training and operational standards meant to prevent harm to
customers. Hagman contends that Massage Heights violated this duty
by failing to train or “investigate the operations” of MH Alden Bridge’s
owners Oliver and OMG Holdings, not informing her that there were

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other allegations of sexual misconduct at Massage Heights franchise
locations, and allowing Rubio to be hired.
In Chan, we held that a person who does not control the premises
at issue may owe a duty of due care by undertaking to make premises
safe for others, but asking others to reduce or eliminate dangers does
not constitute an undertaking. See 683 S.W.3d at 382-83. As Massage
Heights explains, all safety responsibilities were contractually assigned
to MH Alden Bridge, so Massage Heights did not undertake to keep
Hagman safe.
Hagman also points to testimony at trial that Massage Heights
sought to train its franchisees to prevent sexual assault. But there is no
evidence to suggest that any failure to train was a proximate cause of
Hagman’s assault. Instead, Hagman appears to take the position that
if MH Alden Bridge’s principals had been properly trained, Rubio would
not have been hired at all. As already explained, however, Massage
Heights did not control MH Alden Bridge’s hiring and thus owed
Hagman no duty in that regard. Therefore, we conclude that there is
legally insufficient evidence to support the jury’s finding that Massage
Heights negligently performed an undertaking in a manner that
proximately caused Hagman’s injury.

CONCLUSION

We hold the court of appeals erred in concluding that Massage
Heights owed a duty of care to Hagman with regard to Rubio’s hiring.
The record demonstrates that Massage Heights had neither a right of
control nor actual control over MH Alden Bridge’s hiring decisions
sufficient to expose Massage Heights to liability for not providing a list

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of disqualifying offenses to franchisees. Nor did Massage Heights owe a
duty of care to Hagman regarding whether it should enter into or
maintain a franchise agreement with MH Alden Bridge. These holdings
establish as a matter of law that Hagman cannot prevail on her
negligence claim, and there is legally insufficient evidence of negligent
undertaking to support the jury’s finding on that claim. Accordingly,
without hearing oral argument, we grant the petition for review, reverse
the court of appeals’ judgment in part, and render judgment that
Hagman take nothing on her claims against Massage Heights. 3 See TEX.
R. APP. P. 59.1, 60.2(c).

OPINION DELIVERED: May 2, 2025

3 Hagman has not argued that any other alterations in the judgment

should be made if we hold Massage Heights owed her no legal duty.

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