Construction is consistently among the most dangerous industries in Massachusetts. Falls from roofs and scaffolding, struck-by incidents involving equipment and falling materials, trench collapses, and electrocutions injure hundreds of workers on job sites across the Commonwealth every year. What many injured workers never learn, sometimes until it is too late, is that a construction injury often supports two separate claims at the same time: a workers’ compensation claim against the employer’s insurer, and a third-party negligence lawsuit against someone else on the site. Understanding how those two tracks fit together is the difference between recovering a fraction of your losses and recovering all of them.
The Two-Track System: Comp Always, a Lawsuit Sometimes
Massachusetts workers’ compensation, governed by G.L. c. 152, is a no-fault system. If you are an employee injured in the course of your work, you are entitled to benefits regardless of who caused the injury, even if the injury was partly your own fault. In exchange, under G.L. c. 152, §§ 23 and 24, workers’ compensation is the exclusive remedy against your employer. Unless an employee reserved the right to sue in writing at hire, which almost no one does, you cannot bring a negligence lawsuit against your own employer or against co-workers acting in the course of employment. Our full guide to the system is here: Massachusetts workers’ compensation.
The exclusivity bar stops at the employer’s door. It does not protect anyone else. On a typical construction project, the injured worker’s employer is just one of many companies on site: a general contractor, a dozen subcontractors in other trades, the property owner, equipment suppliers, and design professionals. If any of those other parties negligently caused the injury, the worker can collect comp benefits from the employer’s insurer and simultaneously sue the negligent third party in Superior Court. G.L. c. 152, § 15 expressly preserves this right.
Why the Third-Party Claim Is Where Full Damages Live
Workers’ compensation pays defined, limited benefits: a percentage of your average weekly wage (60 percent for total temporary incapacity), reasonable medical treatment, and scheduled payments for certain permanent losses. It pays nothing for pain and suffering, nothing for loss of enjoyment of life, nothing for a spouse’s loss of consortium, and only a portion of lost earnings. For a serious injury, comp benefits often cover less than half of the real economic and human loss.
A third-party negligence claim carries no such limits. The injured worker can recover the full measure of tort damages: all lost earnings and earning capacity, all medical expenses, pain and suffering, permanent impairment and disfigurement, and the spouse’s consortium claim. Where a site death is involved, the family can pursue a wrongful death claim under G.L. c. 229, § 2, including punitive damages for grossly negligent or reckless conduct. This is why every construction injury should be treated as a potential two-track case, with the site cast investigated early, before evidence disappears.
Who Can Be Sued: The Site Cast
- The general contractor (when it is not your employer). GCs typically hold overall responsibility for site coordination and may owe safety duties to subcontractors’ workers, subject to the retained-control rule discussed below.
- Other subcontractors. The electrician whose exposed wiring caused a shock, the excavation sub that left an unguarded trench, the crane operator who dropped a load. Each trade is answerable for its own negligence to workers of other companies.
- The property owner. Owners who control the premises owe a duty of reasonable care, and G.L. c. 143, § 51 imposes liability on owners, lessees, and occupants in control of certain buildings for injuries caused by violations of the chapter and the State Building Code.
- Equipment manufacturers and lessors. A defective ladder, a scaffold component that fails, a nail gun without a functioning safety, or a lift with inadequate guarding can support a product liability claim for negligence and breach of warranty under G.L. c. 106, § 2-314.
- Architects and engineers. Design professionals who assume safety responsibilities in their contracts, or who negligently design structural elements or temporary works, can be liable for resulting injuries.
The Retained-Control Rule and the 2026 Suquilanda Decision
The most litigated question in Massachusetts construction cases is when a general contractor owes a duty to a subcontractor’s employee. The general rule is that one who hires an independent contractor is not liable for the contractor’s negligence. The key exception comes from Corsetti v. Stone Co., 396 Mass. 1 (1985), where the Supreme Judicial Court adopted Restatement (Second) of Torts § 414: a general contractor that retains control over any part of the work owes a duty to exercise that retained control with reasonable care. The control must be more than a general right to inspect progress or stop work; the GC must retain some meaningful control over the manner in which the work, or site safety, is carried out.
The SJC returned to this doctrine in August 2026 in Suquilanda v. Skyway Roofing, Inc., holding that a general contractor owed no negligence duty to a subcontractor’s employee where the GC had not retained control over the subcontractor’s safety practices, and rejecting a negligent hiring claim against the GC where the injured employee could pursue workers’ compensation. The decision confirms that retained control remains the gatekeeper: without evidence that the GC actually kept authority over how the work was performed or how safety was managed, the claim against the GC fails. Read our full case brief: Suquilanda v. Skyway Roofing, Inc.
What does retained control look like in practice? Contract provisions making the GC responsible for site safety, a GC safety officer or superintendent who directs the trades, GC-run safety meetings and inspections with authority to correct hazards, and GC control over scaffolding or fall protection all support the argument. The contract documents, safety manuals, and daily logs are usually the battleground.
OSHA Violations and Building Code Violations as Evidence
The federal Occupational Safety and Health Act does not give injured workers a private right to sue. You cannot bring a lawsuit “under OSHA.” But OSHA standards and citations still play a large role in construction litigation. In Massachusetts, violation of a safety statute or regulation is admissible as evidence of negligence, though it is not negligence per se. An OSHA citation against a general contractor or subcontractor for a fall protection, scaffolding, trenching, or lockout violation connected to your injury is powerful proof of what reasonable care required and how the defendant fell short. OSHA investigation files, photographs, and witness statements can often be obtained through Freedom of Information Act requests.
State Building Code violations work the same way as evidence of negligence, and G.L. c. 143, § 51 goes further for certain premises, making the owner, lessee, or occupant in control liable for all damages caused by violations of that chapter and the building code. Courts have applied the retained-control concept here as well, so the statute is most useful against the party actually in control of the violating condition.
The Comp Lien and the Settlement Math Under § 15
The two tracks meet at the end of the case. Under G.L. c. 152, § 15, the workers’ compensation insurer holds a statutory lien on the third-party recovery. Out of the gross settlement or judgment, the insurer is reimbursed for the benefits it paid, after a proportionate share of the attorney’s fees and litigation costs that produced the recovery is deducted from its lien. The injured worker keeps the excess.
That excess is not free and clear of the comp system. It operates as an offset, often called the insurer’s “holiday”: the insurer generally does not have to pay future weekly benefits or medical expenses until the amount it would have paid exhausts the worker’s net excess recovery. Negotiating how the settlement is allocated, and how the offset will apply to future medical treatment, is a critical part of resolving a third-party case.
Section 15 also requires approval of any third-party settlement, by the Department of Industrial Accidents or by the court after a hearing in which both the employee and the insurer may be heard on the fairness of the settlement and its allocation. A settlement reached during trial needs only the presiding judge’s approval. The insurer itself can bring the third-party action if the employee does not, but only after seven months have passed since the injury. Settling a third-party case without the required approval can jeopardize future comp benefits, so this step is never optional.
Uninsured Subcontractors and Misclassification
Construction sites are where workers’ compensation coverage most often breaks down. Some subcontractors carry no comp insurance. Others misclassify their workers as independent contractors to avoid premiums, a practice Massachusetts law treats with skepticism given the strict three-prong employee test in G.L. c. 149, § 148B.
The statute anticipates the problem. Under G.L. c. 152, § 18, when an insured contractor subcontracts part of the work it has undertaken, and an employee of an uninsured subcontractor is injured on or about the premises where that work is being executed, the contractor’s insurer must pay the employee the same compensation it would owe its own insured workers, so long as the work is part of the contractor’s trade rather than merely ancillary and incidental to it. The insurer can then seek reimbursement from the uninsured subcontractor. Separately, a worker whose own employer is completely uninsured may claim against the Workers’ Compensation Trust Fund and may also sue the uninsured employer directly in tort, where the employer loses its usual defenses. A worker paid in cash by an uninsured sub on a large project may therefore have more options, not fewer.
Deadlines
The third-party negligence claim is subject to the three-year statute of limitations for tort actions, G.L. c. 260, § 2A, generally running from the date of injury. Wrongful death claims are also subject to a three-year limit. Claims involving public entities carry a two-year presentment requirement under G.L. c. 258, § 4. On the comp side, a claim must be filed within four years of when the worker connects the injury to the employment. Do not let weekly comp checks lull you past the lawsuit deadline; the two tracks run on separate clocks. See our full guide: Massachusetts personal injury statute of limitations.
Steps to Take After a Construction Site Injury
- Report the injury immediately to your foreman or supervisor and make sure it is written down. Late reporting is the most common reason comp claims get contested.
- Get medical care and describe the mechanism accurately. The first medical record often becomes the most important liability document in the case.
- Photograph everything: the scaffold, the trench, the ladder, the missing guardrail, the tool, the general area. Conditions on a construction site change within hours.
- Collect names. Identify witnesses and, just as important, identify which company each person on site worked for. The site cast defines the defendant list.
- Preserve the equipment. If a tool, lift, or scaffold component failed, do not let it be repaired or discarded.
- Consider an OSHA complaint. An OSHA investigation documents the hazard while it still exists, and the resulting file can become evidence.
- Consult a lawyer before signing anything or giving a recorded statement to any insurer other than filing your basic comp claim forms.
Frequently Asked Questions
Can I sue my employer after a construction accident?
Almost never. G.L. c. 152, §§ 23 and 24 make workers’ compensation the exclusive remedy against an employer that carries comp insurance, even if the employer was negligent. The main exceptions are an employer that is uninsured, an employee who reserved tort rights in writing at hire, and certain intentional-tort situations. The practical path to full damages runs through third parties, not the employer.
What if a subcontractor caused my injury?
If the negligent subcontractor is not your employer, you can sue it directly while collecting comp benefits from your own employer’s insurer. Exclusivity protects only your employer and co-employees. Claims between companies on a multi-employer site are the core of construction litigation.
Does workers’ comp take part of my lawsuit?
Yes. Under G.L. c. 152, § 15, the comp insurer has a lien on your third-party recovery and is reimbursed for benefits paid, reduced by its proportionate share of attorney’s fees and costs. Your net excess then serves as an offset against future comp benefits. Any third-party settlement must be approved by the Department of Industrial Accidents or the court.
What if my employer has no insurance?
Two things open up. If your employer was an uninsured subcontractor on someone else’s job, G.L. c. 152, § 18 generally makes the general contractor’s comp insurer responsible for your benefits. You may also claim against the Workers’ Compensation Trust Fund, and you may sue the uninsured employer directly in tort, where it loses its usual defenses.
Do OSHA violations prove my case?
Not by themselves. OSHA provides no private right to sue, and a citation is not automatic liability. But in Massachusetts a safety violation is admissible as evidence of negligence, and an OSHA citation tied to the hazard that injured you is often the strongest single piece of proof of what reasonable care required.
How long do I have to file a construction injury lawsuit in Massachusetts?
Three years from the date of injury for a negligence claim under G.L. c. 260, § 2A, and three years for wrongful death. Claims against public entities require presentment within two years. The comp claim runs on its own four-year clock, so receiving benefits does not pause the lawsuit deadline.
This article is general legal information about Massachusetts law, not legal advice. Construction injury cases turn on site-specific facts, contract language, and insurance coverage. Speak with a Massachusetts attorney about your specific situation.