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.