The safety language in your subcontract is now the liability line in Massachusetts. Silence is protective. That is the practical holding of a decision the Supreme Judicial Court issued on August 17, and it will change how subcontracts get drafted in the state.
In October 2021 a roofer named Luis Contento Suquilanda fell from a roof at Jiminy Peak Mountain Resort in Hancock and was catastrophically injured. He worked for MBT Construction Corp., a subcontractor to Skyway Roofing, Inc., which had contracted with the resort in September 2021 to strip and replace shingles. Skyway pulled the town building permit. The application listed Skyway as general contractor and one of its employees as person responsible for construction and project manager.
What the court looked at, and what it didn’t
Justice Georges, writing for a full seven-justice panel, applied Corsetti v. Stone Co. and section 414 of the Restatement (Second) of Torts and found Skyway’s involvement couldn’t support retained control as a matter of law. Skyway delivered shingles, a boom lift and a Dumpster, none of which contributed to the fall, and made two brief pre-accident site visits. The subcontract required MBT to work under Skyway’s general direction but left means and methods to MBT and said nothing about safety. It didn’t assign responsibility for safety equipment, oversight or training to anyone.
The court distinguished Dilaveris v. W.T. Rich Co. and Kelly v. Foxboro Realty Associates, where contracts expressly assigned safety responsibility. That distinction is the whole case. Corsetti-style language obliging a contractor to initiate, maintain and supervise all safety precautions is what creates exposure.
The regulation point matters beyond this case
The court reaffirmed that a safety statute or regulation is evidence of breach of an existing common-law duty but cannot supply the duty in the first instance. So neither the state building code, nor OSHA’s fall protection standard, nor holding the permit created a supervisory obligation. It also held a subcontractor’s employee is not a third person under section 411, which foreclosed the negligent hiring claim outright.
The facts made that second holding uncomfortable. Since 2020 Skyway had subcontracted 72 roofing jobs to MBT. On every one, MBT supplied its own fall protection, and neither company trained MBT’s workers in it. MBT had prior OSHA fall protection citations on other jobs. MBT crews installed anchors and 50-foot lifelines; the plaintiff’s line was too short to finish a shingle move, he unclipped to reattach to another line, and slipped before reattaching.
What contractors should take from it
Two things. First, permit-holder status is not a safety role, whatever the form says. Second, the protective position and the responsible position are now in tension: a GC that writes safety obligations into its subcontracts is buying a duty, and a GC that stays silent isn’t. That is an uncomfortable incentive and the court didn’t pretend otherwise.
Owners can build the answer into the asset instead. Penn’s $17.8 million restoration of the Fisher Fine Arts Library is installing permanent fall-protection anchors so every future roof job starts with a tie-off point already in place, rather than a rigging plan and an argument about whose plan it is.
Sources: Massachusetts Supreme Judicial Court and CourtListener.