High court sticks with conventional duty doctrine in relieving contractor of responsibility for roofer's fall

Jiminy Peak Mountain Resort
Jason Morrison via Flickr (edited) CC BY-NC 2.0

A general contractor without boots on the job site owes no duty of care to a subcontractor's employee on site, the Massachusetts Supreme Judicial Court (SJC) held Monday.

The plaintiff was a roofing worker on the job at Jiminy Peak Mountain Resort in Hancock, Massachusetts. He sustained serious injuries falling from a roof when between safety-harness clips. 

Worker compensation law precluded the plaintiff from suing his own employer, a subcontractor. But as often happens in such cases, to supplement insufficient compensation from the worker compensation system, the plaintiff looks around for third parties who also might bear responsibility. Here, the plaintiff sued the general contractor for negligence and negligent hiring—or, more precisely, negligent contracting.

The litigation pattern is similar to a case I teach (Lulu, SSRN), first developed for 1L torts by the late Prof. Marshall S. Shapo, to introduce students to litigation patterns more complex than a simple one plaintiff versus one defendant, as well as the collateral implications of legislative policy, such as worker compensation. Like here, in Wrobel v Trapani (Ill. App. Ct. 1970), the plaintiff was a subcontractor employee who sued the general contractor in negligence. Sometimes I fret over the age of some of the cases I rely on to teach 1Ls, but, I suppose, the more things change, the more they stay the same.

Though a range of amici lined up on both sides, including the Suffolk Law Supreme Court Clinic for the plaintiff and the American Tort Reform Association for the defense, the instant case was straightforward, and the court's decision a workmanlike affirmance. 

Though the contract between general and sub had broad language about maintaining a safe site, all of the how-to was why the general hired the sub, thus within the sub's almost exclusive purview, the court reasoned. The general contractor had little more authority than to say stop or proceed with the work overall. The sub, and not the general, was involved at the detail level of how long and how many safety lines to have, the sort of stuff that would matter in the plaintiff's suit. So the plaintiff's legal maneuver was an ill-fated effort to subvert the exclusivity of worker comp. 

What's interesting about the case pedagogically is how the SJC framed its decision in terms of duty. The most ethereal of the fundamental elements of tort, duty is where the ghost in the machine gets its say, that is, that judges are permitted to put a thumb in the scale in favor of public policy. And the SJC did. 

"Whether a duty exists is a question of law informed by foreseeability, the relationship of the parties, existing social values, and public policy," the court wrote. Well said; hey, did the court crib my final exam answer key? Because that's an easy six points for the student who remembers.

Applying that standard, beyond the analysis of the facts, the court observed that the legislature frowns on third-party suits that might unfairly undermine worker comp as exclusive remedy. For uncertainty around liability could in turn put a damper on general contracting. The approach is classic economic-conservative, no doubt to the dismay of labor-friendly amici who supported the plaintiff, though not entirely unfairly, if one is suspicious of judicial policymaking.

All the same, the court's reliance on duty is curious in two respects. First, Wrobel v. Trapani was not decided on the basis of duty, rather on the common law doctrine of active-passive indemnity. In Wrobel, the court reached a different conclusion on potential liability in part, but that was because the general contractor in that case did have personnel on site, and the plaintiff alleged directly implicated negligence by one of the general's workers.

The heuristic of active-passive indemnity nevertheless works functionally the same as the court's duty analysis here: the general was not involved, so passive, and the sub was involved, so active, each relative to the alleged negligence. I urge my students to understand active-passive indemnity merely as the sort of hardening of common law logic that occurs through stare decisis when the same fact pattern, here a problem in duty, is presented over and over again in the courts.

Massachusetts does recognize active-passive indemnity, but it is disfavored relative to contractual terms. The instant case exhibits the same disfavor relative to the absence of contractual terms, which might otherwise have spelled out a more specific duty on the part of the general contractor.

Second, the court relies on the Second Restatement to bolster its duty analysis, apparently ignoring the SJC's adoption of the Third Restatement approach to duty, which I wrote about at length more than five years ago and won't unpack again here. Suffice to say the Third Restatement tries to purge policy from the common law duty analysis and might rather have decided the instant case on "scope of liability." That approach, in turn, might more closely reflect the operation of active-passive indemnity.

The dissenters in Doull v. Foster (Mass. 2021), two of five, warned that the Third Restatement approach tried to fix something that wasn't broken and so would not catch on. Their warning seems prescient, as the lower courts have been reluctant to modify their m.o. in duty and causation analysis, and even the SJC has seemed reluctant to double down on rocking the boat.

The instant case is Contento Suquilanda v. Skyway Roofing, Inc. (Mass. Aug. 17, 2026). Justice Serge Georges Jr. wrote the unanimous court opinion. A Suffolk Law alumnus, Justice Georges was sworn into the court in December 2020, so did not participate in the opinion in Doull v. Foster, issued in February 2021.