General Contractor Found Not Liable for Subcontractor Employee’s Injury

A general contractor cannot be held liable for an injury of an employee of a subcontractor where the general contractor had little or no control over the subcontractor’s work or job environment.

The Massachusetts Supreme Judicial Court this week upheld a summary judgment in favor of New York general contractor Skyway Roofing against claims of negligence and negligent hiring brought by an injured roofer who worked for one of its subcontractors.

The case turned on the subcontract, which was silent about safety and did not specify who was responsible for providing safety equipment, oversight, or training for the job replacing shingles on a building at Jiminy Peak Mountain Resort in Hancock, Mass.

Skyway obtained a building permit from the town. The permit application listed Skyway as the “general contractor” for the project. Skyway then subcontracted the work to MBT Construction Corp., a New York firm it had worked with on numerous occasions. The subcontract required MBT to perform all work for the Jiminy Peak project under Skyway’s general direction but left to MBT the means and methods of doing so.

An MBT employee fell while replacing shingles and suffered life-threatening injuries. He brought a workers’ compensation claim against MBT through its New York insurer. He then sued Skyway for negligence.

The plaintiff also brought a claim under New York labor law but the judge concluded that Massachusetts law governed and granted summary judgment for the defendant on that count. The injured employee did not challenge that ruling on appeal.

The general contractor Skyway moved for summary judgment under Massachusetts law of the negligence and negligent hiring claims filed against it. The general contractor argued it had not retained sufficient control over MBT’s work to be liable, and that Massachusetts law does not recognize a negligent hiring claim brought by a subcontractor’s employee against a general contractor.

The trial judge agreed and concluded that the defendant did not owe the plaintiff a duty of care because it did not “retain the rights to control any aspect of MBT’s work.”

The trial judge further concluded that, as the employee of the allegedly negligent subcontractor, the plaintiff could not maintain a negligent hiring claim.

The MBT worker appealed and the Supreme Court elevated the case from the appeals court.

The Supreme Court noted that whether Skyway owed the worker a duty of care is a question of law, and was thus an appropriate subject of summary judgment.

The high court began by citing its own precedent (Corsetti v. Stone Co.) decided in 1985, where it found that if a general contractor “retains the right to control the work in any of its aspects, including the right to initiate and maintain safety measures and programs,” then the general contractor is liable for damages caused by its failure to exercise that control with reasonable care.

The high court said the “retained control” question is ordinarily a question of fact for the jury; however, when the summary judgment record cannot support a finding of retained control as a matter of law, summary judgment is appropriate.

In granting summary judgment, the trial judge concluded that the defendant Skyway did not “exercise any meaningful control over MBT’s work, including the safety aspects of the work.” The general contractor’s involvement was limited to delivering roof shingles, a boom lift, and a Dumpster and to visiting the site briefly on two occasions before the accident. During those visits, Skyway’s employee showed MBT which roof was to be replaced, checked whether additional materials were needed, and sought to ensure that MBT performed the work without damaging the property.

On appeal, the injured worker argued that the general contractor retained control over the safety aspects of the work, citing language in the contract between the defendant and Jiminy Peak and the defendant’s building permit application.

But the high court stressed that cases finding sufficient retained control typically rest on express contractual language assigning safety responsibility to the general contractor, concrete actions tied to those safety responsibilities, or both. For example, in Corsetti, the general contract required the general contractor to “initiate, maintain, and supervise all safety precautions and programs in connection with the work,” and the subcontract gave the general contractor “the authority and control necessary to carry out that responsibility.”

On the other hand, the cases falling short of retained control share contractual language that either places safety responsibility on the independent contractor rather than the party who hired the contractor or gives the hiring party only “a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.”

Here, MBT’s employee pointed to a single sentence in the Jiminy Peak contract requiring the defendant to “maintain the premises in a safe, orderly and workmanlike manner.” The high court found that that language, at most, established a “general duty to provide a reasonably safe worksite,” but did not show that MBT lacked the freedom to “work in its own way” with respect to the specific actions that caused the injury.

“MBT chose the means and methods of its own work. Nothing in the record would permit a jury to find that the defendant retained or exercised control over the placement or adequacy of the safety lines, the use of harnesses, the training of MBT workers on fall protection, or the manner in which MBT performed the roofing work,” the court wrote.

The injured subcontractor employee further argued that the general contractor was negligent in hiring MBT, which it knew had in the past been cited by OSHA for safety violations, in particular with respect to inadequate fall protection.

Although there was evidence of Skyway’s awareness that MBT was issued OSHA citations for fall protection violations on prior jobs, the high court held that the general contractor owed no independent negligent hiring duty to the MBT employee.

“Where the plaintiff is the subcontractor’s own employee, and the general contractor neither retained nor exercised control over the injury-producing condition, and the injury arises from the subcontractor’s performance of its own work, Massachusetts law does not recognize an independent negligent hiring claim against the general contractor,” the state’s high court concluded.