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No Control, No Duty Owed

1/13/21

By: Thomas Hay

In a Massachusetts trial court action, Timothy Lyons v. Phillip C. Farmer Development, Inc., Docket No. 1781-cv-01156, Freeman, Mathis & Gary, LLP prevailed on a motion for involuntary dismissal following the conclusion of the first civil bench trial held in Middlesex County Superior Court since the courts closed in March 2020 due to Covid-19.

The matter involved plaintiff, a thirty-five-year-old experienced framer, who brought a claim for negligence against the defendant, general contractor, resulting from an injury he sustained while performing framing work at a residential construction site. Plaintiff, an employer of the framing subcontractor, alleged the defendant owed him a duty of care to supervise the framing and safety measures utilized by his employer. Specifically, plaintiff claimed the defendant had a non-delegable duty to inspect, supervise, and ensure all appropriate safety regulations and OSHA standards were being utilized, including those set forth in 454 CMR § 10.00 (the “State Regulation”).

The plaintiff, an experienced carpenter and framer, severely injured his left foot and knee after stepping off the end of a saw-horse scaffold (the “scaffold”) while marking the roof’s ridge beam for the installation of the single-family home’s roof. The plaintiff alleged permanent disability preventing him from any meaningful employment. The scaffold was constructed a day or days prior by the plaintiff’s employer and stood no more than six feet above the floor below. The scaffold, which met the definition of a scaffold under the Occupational Safety and Health Administration’s regulations,[1] had no guard rails and the plaintiff was not using fall protection. Fall protection, however, was made available by the plaintiff’s employer who also supplied all tools and equipment necessary to frame the home.

No Duty Owed Through Contract or Control

Under Massachusetts case law, a general contractor has a duty to its subcontractor’s employees if it “retains the right to control the [subcontractor’s] work in any of its aspects, including the right to initiate and maintain safety measures and programs[.]” Corsetti v. Stone Co., 396 Mass. 1, 10 (1985)(adopting the Restatement (Second) of Torts § 414). Thus, only by retaining sufficient control over the subcontractor’s framing work, or the safety of that work, would the defendant owe a legal duty to the plaintiff.

Here, the defendant had no written contract with the plaintiff’s employer and the oral agreement between the parties did not establish any obligation on the defendant to direct or control subcontractor’s work or the safety of that work. Moreover, the evidence at trial established the defendant did not retain control, by contract or in practice, the work of plaintiff’s employer. The defendant did not give direction to the plaintiff, his employer, or any of its employees. In sum, the framing subcontractor was responsible for the means, manner, and methods of its work as well as the safety measures employed.  

Nondelegable Duty?

The plaintiff additionally argued the defendant, as general contractor, had a nondelegable duty of care for the overall safety of persons on the jobsite under the State Regulation. However, the State Regulation applies in the context of the employer-employee relationship. Accordingly, the State Regulation cited by the plaintiff, at Section 10.03(9), is inapplicable as the plaintiff was not an employee of the defendant. Thus, the court found the State Regulation did not impose a duty of care for supervision of safety on the defendant general contractor.

The Superior Court’s decision reaffirms the principle set forth in Corsetti and its progeny that a general contractor may only be held liable to a subcontractor’s injured employer where it exercised or retained meaningful control through contract or its actions on the jobsite.


[1] Additionally, the court, agreeing with the defendant, found the State Regulation governing safety requirements for scaffolds to be in conflict with the applicable OSHA scaffold safety regulation, 29 C.F.R. § 1926.451(g)(1) (the “OSHA Regulation”). The court found the State Regulation, requiring guardrails to be used for scaffolds more than four feet above the floor below, was in conflict with the OSHA Regulation that only required guardrails or fall protection for scaffolds at heights greater than ten feet above the floor below. The court reasoned that the OSHA Regulation, a federal standard, addresses the same safety and health issues as the State Regulation. Because the State Regulation directly, clearly, and substantially conflict with OSHA standards, the court found the State Regulation was preempted by the OSHA Regulation. 

If you have questions or would like more information, please contact Thomas Hay at [email protected].