Boston Partners Joe Flanagan and Mike Leedberg obtained a favorable landmark decision from the Supreme Judicial Court for a general contractor in a construction accident case. The decision has changed the landscape for construction cases regarding the Corsetti control rule and liability for negligent hiring of a subcontractor.
Our client, Skyway Roofing, Inc., secured a job to replace the cedar shingles on a steeply pitched roof for J.J.’s Lodge, a three-story structure on the grounds of Jiminy Peak Ski Resort in Hancock, Massachusetts. Skyway contracted to “maintain the premises in a safe, orderly and workmanlike manner,” but the contract was otherwise silent on safety and regulatory/OSHA compliance. Skyway pulled the permits from the Town and was listed as the Construction Supervisor of record.
Skyway subcontracted the job to MBT and their contract provided that MBT would perform the job under the “general direction” of Skyway, but it was silent on the issue of safety and OSHA compliance. There was an undisputed, ten-year course of dealing between Skyway and MBT that established that Skyway always supplied the materials, a dumpster, a boom lift, and general oversight, while MBT would provide all else, including labor, supervision and fall protection. The means and methods of the work always rested exclusively with MBT on these projects.
The Jiminy Peak job was no different. MBT supplied and installed the fall protection, which consisted of several, evenly spaced anchors across the peak of the roof to which the workers anchored their personal fall arrest systems. On the third day, the plaintiff, one of MBT’s workers, unhooked his harness while walking on the peak of the roof. MBT had spaced its anchors at distances that would not allow the plaintiff to reach the next line as he traversed the roof, so he unhooked his harness to reach the next line. After unhooking his harness, the plaintiff took one or two steps, slipped on the cedar shingles, and slid down and off the roof more than 30 feet to the ground and suffered catastrophic injuries. OSHA cited MBT, not Skyway, for fall protection violations as the controlling employer on site.
Plaintiff collected worker’s compensation through MBT’s carrier and then sued Skyway for negligently supervising the project and for negligently hiring MBT. The fact that MBT had at least one prior OSHA fall protection citation supported the plaintiff’s negligent hiring claim. Plaintiff also argued that, as the CSL of record with the Town, the State Building Code and OSHA regulations imposed a duty upon Skyway over site safety, regardless of whether it retained or exercised any control over the work per Corsetti v. Stone, 396 Mass. 1 (1985).
At the close of discovery, we moved for summary judgment, arguing: 1) Skyway neither retained nor exercised sufficient control over MBT’s work for a duty in tort to attach under Corsetti and its progeny; 2) the State Building Code and OSHA could not give rise to a duty in tort where one did not already exist at common law; and 3) there is no cause of action in Massachusetts for negligently hiring one’s own employer as an independent contractor. Judge Maureen B. Hogan agreed with us across the board, granting summary judgment. Plaintiff appealed and the SJC took the case sua sponte.
The SJC affirmed the Superior Court’s ruling in all relevant respects. The Court held that the undisputed record yielded insufficient evidence to raise an issue for the jury on the questions of retained or actual control over the work. More importantly, the SJC agreed with Morrison Mahoney’s argument that the state building code and OSHA cannot serve as the catalyst for imposing a tort duty upon the CSL of record, independent of the underlying tort duty created by Corsetti more than 40 years ago.
Finally, the SJC also agreed that there is no cause of action in Massachusetts by an injured worker against an upstream contractor for negligently hiring or retaining his own employer. The SJC reasoned that there is no policy justification for doing so and, in fact, the Court observed that doing so would undermine the exclusivity provision of the Worker’s Compensation Act. (Not to mention that it would be illogical to allow employees of subcontractors to claim that the GC was negligent for hiring unfit subcontractors (their employers)).
The latter two rulings constitute landmark rulings for the construction industry. For decades, the plaintiff’s bar has relentlessly searched for end-runs to the worker’s compensation bar and Corsetti’s narrow exception, in part by arguing negligent retention theories and by attempting to bootstrap a tort duty of reasonable care using the compliance requirements within the safety statutes and regulations, apart from Corsetti’s “control” requirement. In 1998, a Superior Court judge sided with the plaintiff’s bar on this issue, ruling that a tort duty of care can arise out of safety statutes and regulations regardless of the control requirements set forth in Corsetti. Molinari v. Royal Heights Construction Co., Docket No. 934424, 1998 WL 1181667 (McHugh, J., Sept. 8, 1998). Several other judges later denied summary judgment motions in reliance on the Molinari decision.
In 2022, the Appeals Court “assumed without deciding” that a safety statute or regulation could give rise to a tort duty of care before rejecting the argument on the merits. Lyons v. Philip C. Farmer Development, Inc., 100 Mass. App. Ct. 1133 (2022) (unpublished M.A.C. Rule 23.0 disposition). This statement gave further support to the plaintiff’s bar.
On August 17, 2026, however, the SJC answered the question once and for all in the negative, reaffirming the longstanding principle of Massachusetts law that a violation of a safety statute or regulation can only serve as evidence of breach of an existing common law duty of reasonable care, and cannot supply a duty in the first instance absent a clear expression of legislative intent to the contrary. Thus, the Court ruled that a duty to supervise safety at the site is not imposed by the state building code or OSHA regulation, nor is it imposed by the fact that the GC pulled the building permit.
This ruling closed the door on an argument that, if accepted, would have imposed a tort duty of care upon any contractor at a work site who is required by the state building code and OSHA to provide a safe work environment at construction sites. Such a rule would have encompassed every contractor on every work site and would have precluded summary judgment in virtually every case. It would have essentially deprived contractors of the freedom to contract and allocate risk as they see fit.
The SJC’s ruling on negligent hiring and retention takes another arrow out of the plaintiffs’ bar’s quiver as they seek to shed the restraints of the exclusivity of the worker’s compensation remedy and the control requirements of Corsetti. There is, however, at least one and perhaps two limiting principles to keep in mind. First, the decision is expressly limited to claims where the upstream contractor is accused of negligently hiring/retaining the injured worker’s own employer. Whether a claim exists for negligently hiring/retaining other independent contractors remains an open question of law in Massachusetts. The decision does, however, provide a solid foundation to make the broader argument, given that many of the justifications are the same whether the negligently hired contractor is the injured worker’s employer or not.
Second, the SJC limited its ruling to situations where the employing contractor did not retain or exercise control over the independent contractor. It remains to be seen how that limiting language would apply in cases where there was evidence of control, given that the SJC otherwise relied upon policy arguments used nationwide in identical circumstances to outright reject such claims in all instances.
Joe and Mike have decades of trial and appellate experience in the state and federal courts throughout New England. They also assist contractors with drafting contracts in a manner that effectuates risk transfer goals, and avoids the common pitfalls caused by unfavorable precedents that followed the Corsetti decision.
