SJC hears arguments on whether general contractors can face negligent-hiring claims for subcontractor employees

The Massachusetts Supreme Judicial Court heard arguments on whether an employee of a subcontractor may bring a negligent-hiring or negligent-contracting claim against a general contractor after being injured on a job the general contractor permitted.

At the outset, Tom Bond, counsel for the plaintiff-appellant Luis Contento Suquilanda, told the court that Skyway Roofing obtained the contract by representing it would manage project safety and then "pulled the bait and switch" by hiring a frequent subcontractor with prior OSHA fall-protection citations. Bond said the general contractor "went into the town hall and they swore that they were in control of the construction," and argued the record supports treating that representation as retained control that can give rise to a civil claim rather than leaving the injured worker solely to the workers' compensation system.

Bond urged the court to recognize the claim to create a safety incentive for general contractors to vet subcontractors. "I call it the swear-switching-ghost practice," he said, arguing that courts should not bless a blueprint that allows a contractor to represent control for permitting purposes while outsourcing the risky work.

Several justices pushed back on that framing by asking whether permitting a negligent-hiring claim would interfere with the statutory workers' compensation framework. One justice observed that the first money recovered is typically for the benefit of the workers' compensation insurer under chapter 152 and asked whether permitting this claim would simply produce duplicative recovery and complicated indemnity and subrogation chains. Bond responded that the statutory allocation of recovery and subrogation rules would prevent double recovery and that the proposed rule targets separate, nonduplicative damages tied to a GCduty.

Counsel and the bench discussed Corsetti v. Stone and related precedent at length. Corsetti creates a narrow exception where a general contractor has "retained" specific responsibility for safety and, therefore, may be liable to a subcontractor's employee. The justices probed whether Bond sought to expand Corsetti or asked the court merely to apply Corsetti based on the permit representation that Skyway listed itself as the project manager responsible for "construction means and methods." Bond pointed to the building-permit application in the record (appendix pages cited during argument) as the source for his contention that Skyway swore it would retain control.

Opposing counsel Masha Hansford of Paul, Weiss, for Skyway Roofing, argued the court should not recognize a new negligent-hiring claim. Hansford said the record lacks the contractual language or facts showing Skyway assumed the specific safety responsibilities required by Corsetti and comparable cases; she characterized Corsetti as a narrow doctrine that should not be expanded by judicial fiat. She emphasized the course of performance between the parties, arguing MBT (the subcontractor) historically provided training and fall protection and that the evidence resembles Lyon-style decisions where the court refused to find a retained-safety duty.

Hansford also stressed the policy consequences of recognizing a new tort, saying the workers' compensation system already internalizes many risks through insurance premiums and subrogation and that creating a broad negligent-hiring cause of action would likely spur further litigation and regulatory confusion. She noted that OSHA fines discussed in argument are capped at modest amounts in many contexts and cautioned the court against using tort law to recreate a legislative experiment the legislature had previously reversed.

Throughout the argument the bench repeatedly observed that whether a general contractor retained meaningful safety control is usually a question of fact for a jury and that summary judgment is typically inappropriate if material facts are disputed. Several justices asked counsel to identify where in the permit application the defendant expressly promised to retain safety authority; counsel pointed to specific appendix pages but the bench indicated the permit fields do not plainly list subcontractors or state that subcontractors may not be hired. The justices also pressed practical questions about how any new duty would be defined and limited to avoid sweeping liability.

The argument concluded without decision. The SJC will issue a written opinion resolving whether Massachusetts should recognize a negligent-hiring claim by a subcontractoremployee against a general contractor or whether existing doctrines such as Corsetti and the workers' compensation scheme preclude such a cause of action.