Tonya Bauer, Individually and as Guardian of the Person and Estate of Emily Bauer, an Incapacitated Person, and William Bryant v. Gulshan Enterprises, Inc., Bin Enterprises, Inc., Khalid Khan and Phillips 66 Company, 617 S.W.3d 1

Background

Teenager Emily Bauer suffered catastrophic neurological injuries after smoking synthetic cannabinoids purchased at Handi-Stop convenience store; lifetime care costs estimated in the multi‑millions.
Gulshan Enterprises was a wholesale fuel distributor that supplied ConocoPhillips‑branded gasoline to Bin (the dealer) under a Branded Marketer Agreement (BMA); Bin owned Handi‑Stop and leased it to Khan, who operated the store.
The BMA imposed "Brand and Image Standards" on Gulshan and required Gulshan to ensure that marketer‑supplied outlets complied, but inspections were performed by ConocoPhillips or its designee and the BMA expressly disclaimed third‑party beneficiaries.
Bauer sued Gulshan (among others) for products liability and negligence; products‑liability claims against Gulshan were dismissed and Bauer non‑suited other claims except negligence against Gulshan; the trial court granted Gulshan summary judgment on the negligence claim.
On appeal Bauer argued (1) the BMA and related conduct created a tort duty (simple negligence) and (2) Gulshan voluntarily undertook inspection/monitoring duties (negligent undertaking); the court affirmed summary judgment, holding Bauer produced no evidence of a legal duty owed by Gulshan to Emily.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BMA or related contracts created a duty in tort from Gulshan to Emily (simple negligence)	Baurer: BMA assigned Gulshan responsibility to ensure outlets don’t permit sale/use of illegal drugs, thus Gulshan had a duty to inspect/monitor Handi‑Stop	Gulshan: BMA did not impose inspection duties on Gulshan; ConocoPhillips performed inspections; Gulshan did not own, operate, or control Handi‑Stop	Court: No duty — BMA did not obligate Gulshan to inspect and parties disclaimed third‑party beneficiaries; Gulshan lacked control over Handi‑Stop
Whether Gulshan affirmatively undertook duties (negligent undertaking)	Bauer: Gulshan received inspection reports, had standing policies and performed or could have performed inspections, so it undertook duties and failed to perform them reasonably	Gulshan: No evidence of an affirmative undertaking at Handi‑Stop, no performance or reliance that would create tort duty; isolated statements and remote inspections of other sites are insufficient	Court: No evidence of an undertaking at Handi‑Stop or of performance/reliance; promises or hypothetical inspections do not create a tort duty
Whether Bauer met the no‑evidence standard to avoid summary judgment	Bauer: Presented BMA, contracts, inspection reports, photos, and deposition testimony raising more than a scintilla of evidence on duty/breach/causation	Gulshan: Movant showed absence of evidence on essential elements; Bauer’s evidence fails to show Gulshan knew of sales or exercised control or undertook duties	Court: Applying no‑evidence standard, Bauer produced only scintilla‑level or irrelevant evidence; summary judgment affirmed

Key Cases Cited

Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (de novo review of summary judgment and treating evidence in non‑movant's favor)
Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (priority of no‑evidence review when trial court’s grounds are unspecified)
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (explaining the "more than a scintilla" evidentiary threshold)
Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2013) (elements of negligent undertaking under Restatement §324A)
Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (Texas law generally imposes no duty to prevent harm absent special relationships or circumstances)
Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392 (Tex. 1991) (mere promises to act without performance or reliance do not create a tort duty)
Knife River Corp. v. Hinojosa, 438 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2014) (contractual scope and lack of affirmative undertaking defeat negligent‑undertaking claim)
Praesel v. Johnson, 967 S.W.2d 391 (Tex. 1998) (elements of negligence: duty, breach, and proximate causation)