Legal Memorandum: Duty of Property Owner to Employees of Contractors

Issue: What duty does a property owner owe to the employee of a general contractor under Massachusetts law, especially in light of the case of Coretti v. Stone?

In determining the duty, if any, that an employer owes to employees of independent contractors, the Restatement (Second) of Torts provides:  “One who entrusts work to an independent contractor, but who retains the control of any part of the work is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his contr0ol with reasonable care.”  Restatement (Second) of Torts § 414 (1965) (emphasis added). 

The comments to § 414 provide further guidance.  According to a comment, if an employer of an independent contractor “retains control over the operative detail of doing any part of the work,” he is subject to liability for the negligence of employees of the contractor under the rules of agency dealing with the relation of master and servant.  Id. cmt. a.  An employer, however, may retain less control.  “He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others.”  Id.  According to comment a, in such cases, the law of agency may not subject the employer to liability, but he may nevertheless be liable under § 414 “unless he exercises his supervisory control with reasonable care as to prevent the work which he has ordered to be done from causing injury to others.”  Id.

According to comment b, the rule of § 414 […]