Who is responsible when a construction worker is injured due to unsafe working conditions? Often the injured worker is an employee of a subcontractor. Is the owner of the site liable? What about the general contractor, other subcontractors, or the subcontractor which employs the injured worker? The answer will often depend on the amount of control over the site and the work retained by the various parties.
Consider a hypothetical in which a painter, Bob, is injured when the scaffolding on which he is standing collapses because it was improperly erected. Bob is employed by High Wire Painting, Inc., a contractor. High Wire is employed by the site owner, a bank. At the time of the accident, Bob was not wearing a safety harness as required by state regulations.
The bank, through its manager, Johnson, acts as its own general contractor, employing various contractors for specific parts of the job. High Wire reports to Johnson, but there is no written contract between High Wire and the bank.
Johnson, on behalf of the bank, visits the construction site almost every day. While on site, Johnson has the opportunity to examine the scaffolding and to observe the manner in which High Wire and its employees, including Bob, are doing their work. He can observe that Bob is not wearing fall protection on the day of the accident or on any prior day.
The bank, through Johnson, exercises some control over the manner in which High Wire and Bob do their work, giving specific directions as to how particular areas are to be painted. In addition, High Wire and Bob are told that all questions about the work should be directed to Johnson.
Based upon these facts, Bob has a reasonable likelihood of proving that although the bank hired an independent contractor, High Wire, to perform the painting work, the bank retained sufficient control over the work, including safety issues, to have a responsibility to protect the safety of persons on the worksite.
The general rule is that, as stated by the Supreme Judicial Court in Corsetti v. The Stone Company,
if the employer [of an independent contractor] retains no control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it’.
if the employer retains the right to control the work in any of its aspects, including the right to initiate and maintain safety measures and programs, he must exercise that control with reasonable care for the safety of others, and he is liable for damages caused by his failure to do so….
… “The rule … is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors’ work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself.” Id., comment b.
“Whether an employer has sufficient control over part of the work of an independent contractor to render him liable … is a question of fact for the jury.”
The amount of control retained need not be significant to trigger liability on the part of one who employs a contractor. As noted by the Corsetti Court, the amount of control need not be such as would establish a master/servant (employment) relationship, rendering the employer vicariously liable for negligent conduct of the employee within the scope of the employee’s employment. Further, the control “need not descend to the last detail of method or operation for the imposition of liability to result….”
On the other hand,
it is not enough, that [the employer] had merely a general right to order the work stopped or resumed, to inspect its progress, or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such retention of a right of supervision that the contractor is not entirely free to do the work his way.
In addition, before liability can be imposed on the employer of an independent contractor it must be shown that the employer knew or should have known of the dangers posed by the contractor’s performance and that the employer had the opportunity to use its retained control to remedy the danger.
The cases concerning retained control are highly fact-specific and often focus heavily on the provisions of a contract between the owner and the general contractor, the general contractor and subcontractors, or both, especially those provisions allocating responsibility for construction site safety.
In our hypothetical there is no contract. However, the facts tend to support the conclusion that the bank retained at least some control over the work, including safety issues, that the bank, though Johnson, knew or should have known that High Wire’s employees, including Bob, were working on scaffolding without required fall protection, and that the bank could have exercised its retained control to require that the work be continued in compliance with fall protection requirements.
As set forth above, Johnson, on behalf of the bank, visited the construction site almost every day. He, therefore, had the opportunity to examine the scaffolding, to observe the manner in which High Wire and its employees were doing their work and to see that they were not wearing fall protection on the day of the accident or on any prior day. Johnson also exercised some control over the manner in which High Wire and its employees did their work. For example, he gave them detailed directions about which items to paint.
Most importantly, High Wire and its employees, including Bob, understood that with regard to construction issues of any type, they were to follow the decisions and direction of Johnson/the bank.
Thus, the amount of control retained by the bank arguably exceeded a mere right to inspect and to order the work stopped due to safety violations, which the courts have held to be insufficient to render an owner liable. The bank controlled, at least to some degree, the details of the work and the manner in which it was being done. A court would likely find that sufficient to impose liability on the bank under a theory of retained control. Bob should consider pursuing a claim against the bank.
If you have been injured in a construction accident, you should contact an attorney who can analyze the facts surrounding your injury, identify those parties who may be responsible and take steps to protect your rights.
 Corsetti v. The Stone Company, 396 Mass. 1, 10 (1985).
 Id. at 10-11. (Footnote references omitted).
 Corsetti, 396 Mass. at 11.
 Paradoa v. CAN Ins. Co., 41 Mass. App. Ct. 651, 654 (1996); Cabreira v. Verizon New England, Inc., 2007 WL 1829382, *4 (6/14/07).
 Restatement (second) of Torts, §414 com. “c”; Foley v. Rust Intern., 901 F.2d 183, 184 (1st cir. 1990); Lopez v. Equity Office Management, LLC, 597 F. Supp.2d 189, 193 (D. Mass. 2009); Kelliher v. Brandeis University, 2008 WL 1932096, *2 (Mass. Super. 4/24/08); Bayliss v. Hannan Construction Corp., 2007 WL 738925, *2 (Mass. Super. 2/14/07); Cabreira v. Verizon New England, Inc., 2007 WL 1829382, *4.
 Corsetti, 396 Mass. at 10-11; Lopez v. Equity Office Management, LLC, 597 F. Supp.2d 189, 193 (D. Mass. 2009).
 See Callender, 2007 WL 2705529 (holding that where plaintiff’s employer viewed defendant company’s president as someone from whom it would accept direction, there was at least an issue of fact to be decided by the jury as to whether defendant company was a general contractor and had duties based on retained control under Corsetti).