Injured construction workers likely know they are entitled to workers’ compensation benefits from their immediate employer. What they may not realize is the possibility to receive damages from a general contractor through a negligence suit. As discussed previously on this blog, workers’ compensation, created through statute, is available for employees to quickly receive needed funds for care and lost wages, and for employers to avoid the cost of suit and lost time.
Construction and renovation projects, however, often involve several different parties on site. One of those parties can cause an injury. Unlike workers’ compensation, which does not require negligence to be shown, a general contractor’s failed duty to the injured worker must be shown. Massachusetts case law has established that a general contractor can assume a duty of care for a sub-contractor’s safety if they retain control of her or his work. This must go further than the general right to inspect, make recommendations, or set schedules. Control, in this situation, must be the right to control the methods by which the work is performed.
In Yepes vs. C.H. Newton Builders, Inc. (15-P-375), the injured worker appealed a summary judgment entered in favor of the general contractor, where the judge discounted two affidavits submitted by co-workers, relaying the role of the general contractor on the job site. The injured worker was part of the subcontractor’s team who was helping to strip and refinish the wood work in a home. The worker fell off scaffolding and fractured his ankle. He filed suit against the contractor, claiming that the general contractor failed to keep the premises safe. As part of his suit, the injured worker included two affidavits submitted by coworkers, which relayed that the general contractor was in charge of the worksite and all the trades, giving instructions as to how the work should be performed.
The trial judge did not feel the affidavits complied with Massachusetts rule 56(e), which requires the affidavits to be made on personal knowledge that is admissible in evidence. The judge did not consider the affidavits, ruling that they were “conclusory” and “largely irrelevant”. The Appeals Court disagreed with the judge, finding that the affidavits met the requirements of rule 56(e) on its face. The appellate court particularly found the judge incorrect on making a credibility determination, which is supposed to be handled by the jury. However, even with this determination, the appellate court allowed the judge’s determination that the injured worker failed to show that the general contractor owed him a duty under the “retained control” theory, as the injured worker did not challenge that issue on appeal. The summary judgment was ultimately affirmed.
The Massachusetts personal injury and workers’ compensation attorneys at Karsner & Meehan have the experience injured workers need to access workers’ compensation benefits or file suit against a general contractor. For a free, confidential consultation today, contact our office at 508.822.6600.
More Blog Posts:
Appeals Court of Massachusetts Case Reveals The Difficulty People Face When Contesting a Will, Massachusetts Injury Lawyers Blog, March 3, 2016
Rear-end Collision Appellate Case Helps Illustrate Burden of Proof Considerations in Massachusetts Personal Injury Cases, Massachusetts Injury Lawyers Blog, February 3, 2016