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.

'Super tort' might represent failure of public policymaking, but is only tip of melting iceberg

First Circuit remands R.I. suit against Big Oil for public nuisance

Super Tort
(pxhere.com CC0)

A "super tort" sounds delicious.  Indeed, the term refers more often to food than to a theory of civil liability.  Maybe that's why the term animated headlines recently when the defense-friendly American Tort Reform Association (ATRA) used it in an amicus brief to the Oklahoma Supreme Court.

In October, ATRA filed its brief on the side of Johnson & Johnson's appeal of a $465m trial verdict of public nuisance liability in the opioid epidemic.  In the brief, ATRA warned that the award represented a "new species of public nuisance [that] will devour all of Oklahoma tort law and, with it, who knows how many businesses."  ATRA explained (my bold):

Since its inception, public nuisance has played a circumscribed role in Oklahoman—indeed, American—jurisprudence. It originated as a property-based tort used to remedy invasions of public lands or shared resources like highways and waterways. The trial court ignored that history, transforming public nuisance into a super tort that exposes Oklahoma businesses to unlimited liability for a broad array of public issues that are far removed from traditional public nuisances.

ATRA further argued its position in terms of the separation of powers, or, classically stated, Aristotelian justice:

The decision will also chill business activity throughout the state for fear that any product linked to a perceived social problem may lead to astronomical and disproportionate liability. It is not the judiciary's role to create a new tort to address social problems. That job belongs to the legislature, which can weigh competing policy factors and study the possible consequences of expanding traditional nuisance law.

Lead paint can
(Thester11 CC BY 3.0)

This isn't the first time ATRA has bemoaned the emergence of a public nuisance "super tort."  Among other tort-reform advocates, defense attorney Phil Goldberg used the term in 2008 and in 2018 to describe lead paint liability.  On the former occasion, echoed in an industry legal brief and in legal scholarship, the Supreme Court of Rhode Island had just rejected industry liability for lead paint on grounds that the defendants had no control over the product at the time it caused harm to children.  An ATRA leader warned of "super tort" in the climate change context as early as 2011 (States News Serv., Apr. 18, 2011 (quoting Tiger Joyce)). (Inapposite here, Patrick O'Callaghan, University College Cork, used the term "super tort" in the Irish Law Times in 2006 to describe potential excess in invasion-of-privacy liability.)

Nevertheless, public nuisance is the leading theory with which the State of Rhode Island now demands that oil companies pay for the past and future consequences of climate change.  Rhode Island alleges theories of product liability and public trust, in addition to public nuisance.  The state's suit is just one of many filed by state and local governments against Big Oil.  The Sabin Center for Climate Change Law, at Columbia Law School, tracks all U.S. litigation on climate change, including the Rhode Island suit. 

Just last week, the First Circuit remanded the Rhode Island suit to state court, rejecting industry claims of federal preemption.  Meanwhile, the case in state court is on hold while the U.S. Supreme Court ponders the outer constitutional limits of personal jurisdiction.  The Court's ruling in an otherwise unrelated case, which I wrote about in April and the Court heard this fall, has ramifications for Rhode Island's thin assertion of jurisdiction over transnational oil defendants.

Over the summer, I spoke about the expansive approach to public nuisance that resulted in the colossal Oklahoma award against Johnson & Johnson and that leads government claims against Big Oil over climate change.  Corporate objections voiced by ATRA, based in Aristotelian justice, are legitimate.  Ironically, as I discussed briefly in my lecture, I see this resort to the courts as an understandable expression of public frustration with corporate capture of our political branches of government.

The Rhode Island complaint images industry-sponsored public service announcements that sewed doubt about climate change and the role of fossil fuel.

Yet despite my skepticism, as a Rhode Islander and a taxpayer, I find the allegations in the state's 2018 complaint awfully persuasive.  The climate science is neatly summarized with color charts, and I'm a sucker for a color chart.  More dispassionately persuasive of moral responsibility on the part of industry, though, are excerpts of trade association advertising that downplayed, if not mocked, climate change science at a time when the industry must have known better.  The ads are eerily reminiscent of Big Tobacco efforts to downplay the risks of smoking for decades through the selectively scientific work of the Tobacco Institute.  That makes me wonder that product liability and consumer protection might be the states' and localities' best approach, not to mention a more doctrinally conservative strategy, and therefore judicially appealing approach, compared with a no-holds-barred theory of public nuisance—if we must rely on the courts alone, after all.

We might ought worry that "super tort" will devour our rational framework of civil liability.  But rather than reject industry responsibility and liability outright, we should add "super tort" to our lately exploded catalog of reasons to examine how and why our political institutions have failed to protect the environment, public health, and human life.

The case in Rhode Island state court is Rhode Island v. Chevron Corp., No. PC-2018-4716 (Bristol County, R.I. Super. Ct. filed July 2, 2018).  The case in the First Circuit was Rhode Island v. Shell Oil Prod. Co., No. 19-1818 (1st Cir. Oct. 29, 2020).