Massachusetts Supreme Judicial Court Forecloses Workaround for Negligent Hiring Claims

The case arose from a catastrophic fall suffered by the plaintiff while performing roofing work at a resort property. The plaintiff was employed by MBT Construction Corp., which had been subcontracted by Skyway Roofing, Inc. to perform the shingle replacement. Although the plaintiff received workers’ compensation benefits through MBT’s insurer, he filed suit against Skyway, alleging, in part, it hired MBT “knowing, or having reason to know, that MBT had previously failed to maintain safe worksites, particularly with respect to fall protection.” 

The court found that Skyway had limited involvement in MBT’s operations, comprised largely of delivering materials and briefly visiting the site. Such actions were insufficient to constitute retained control of MBT’s work, and therefore Skyway did not have a duty to ensure the safety of the worksite. Subsequently, on the negligent hiring count, the court held that Massachusetts law does not recognize an independent negligent hiring claim against a general contractor where: (1) the general contractor neither retained nor exercised control over the operations of the subcontractor, (2) the plaintiff is the subcontractor’s own employee, and (3) the injury arises from the subcontractor’s performance of its own work.

The court explained that Massachusetts’ negligent hiring cases ordinarily involve injuries to members of the public (i.e., patients or customers) exposed to the tortfeasor because of the defendant’s hiring decision. Here, the plaintiff’s exposure flowed from his own employer. Recognizing a claim in the plaintiff’s situation would collapse the distinction between a duty to protect third persons foreseeably exposed to a contractor’s negligence, and a duty to protect the contractor’s own employees from risks inherent in the work itself. Additionally, the court found that allowing the plaintiff’s claim would improperly circumvent the exclusivity principles underlying the workers’ compensation system, particularly because an indemnification provision in the subcontract would effectively expose MBT to double liability.

This decision provides important clarity and protection for general contractors operating in Massachusetts. It confirms that, if the general contractor does not retain or exercise control over the subcontractor’s operations, merely hiring a subcontractor with an imperfect safety record will not create an independent tort duty to the subcontractor’s own employees. General contractors should nonetheless continue to conduct thorough vetting of subcontractors and maintain clear contractual allocation of safety responsibilities.