Submitted: November 15, 2018
from United States District Court for the District of North
Dakota - Bismarck
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
SHEPHERD, Circuit Judge.
Vandewarker, an employee of Great Western Resources (Great
Western), appeals the district court's grant of summary
judgment to Continental Resources, Inc. (Continental),
dismissing Vandewarker's personal injury action against
Continental. Having jurisdiction pursuant to 28 U.S.C. §
1291, we affirm.
hired Great Western as an independent contractor to gauge
wastewater levels in holding tanks at its well sites in North
Dakota. Vandewarker, a semi-tractor truck operator employed
by Great Western, emptied and hauled wastewater from the
wells' holding tanks. Additionally, he was tasked by
Great Western with the responsibility of conducting the
actual gauging of the wastewater levels. To do so, he climbed
metal staircases adjacent to the tanks and measured the
tanks' water levels. On October 18, 2012, Vandewarker
attempted to assess the water levels at one of
Continental's well sites and fell 10-15 feet off one of
the holding tank staircases, due to a loose bolt and
disconnected bracket. He fractured several ribs and injured
his back and shoulder.
2013, Vandewarker, a citizen of Oregon, filed this diversity
suit for his injuries against Continental, an Oklahoma
company, claiming negligence, gross negligence, and
intentional infliction of emotional distress. Specifically,
Vandewarker alleged that Continental failed to properly
install, inspect, and maintain the staircase, thus
negligently failing to provide to Vandewarker equipment that
was safe for its intended use and a safe environment in which
to work. In deposition testimony, he contended that
Continental knew about the faulty condition of the stairs
because he had told a Continental employee about it two days
before his fall. Continental did not dispute this fact but
emphasized in a summary judgment motion that because
Vandewarker was employed by its independent contractor, Great
Western, Continental owed no duty to him. The district court
granted summary judgment to Continental, concluding that
Continental did not retain the right to exercise control over
the work performed by its independent contractor, Great
Western, or Great Western's employee, Vandewarker, nor
did Continental exercise actual control over the work
performed by Great Western and Vandewarker. Therefore,
Continental owed no duty to Vandewarker. Vandewarker contests
the order on several bases, arguing Continental either had
direct liability for his injuries or at least assumed
liability through its actions.
review de novo a district court's grant of summary
judgment[, ]" viewing the "facts and inferences . .
. in the light most favorable to the nonmoving party."
Kiemele v. Soo Line R.R. Co., 93 F.3d 472, 474 (8th
Cir. 1996). The moving party bears the burden of showing
"that there is no genuine dispute as to any material
fact and [it] is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). "Where the record taken
as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for
trial," and summary judgment is appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (internal quotation marks omitted).
this is a diversity action, we apply "the substantive
law of the forum state, here North Dakota." N. Oil
& Gas, Inc. v. Moen, 808 F.3d 373, 376 (8th Cir.
2015). Under North Dakota law, "[n]egligence consists of
a duty on the part of an allegedly negligent party to protect
the plaintiff from injury, a failure to discharge the duty,
and a resulting injury proximately caused by the breach of
the duty." Grewal v. N.D. Ass'n of Counties
& Nw. Contracting, Inc., 2003 ND 156, ¶ 9, 670
N.W.2d 336, 339 (citing Gullickson v. Torkelson Bros.,
Inc., 1999 ND 155, ¶ 7, 598 N.W.2d 503, 505).
"To establish actionable negligence, a plaintiff must
show the existence of a duty by the defendant to protect the
plaintiff from injury." Pechtl v. Conoco, Inc.,
1997 ND 161, ¶ 7, 567 N.W.2d 813, 816 (citing Madler
v. McKenzie Cnty., 467 N.W.2d 709, 711 (N.D. 1991)).
Whether such a duty exists is typically "a preliminary
question of law for the court." Id.
Restatement (Second) of Torts § 414, the employer of an
independent contractor may owe the independent
contractor's employee a duty through "an express
contractual provision giving the employer the right to
control the operative details of the independent
contractor's work, or by the employer's actual
exercise of retained control of the work."
Pechtl, 1997 ND 161, ¶ 11, 567 N.W.2d at 816.
Here, Vandewarker alleges that a duty arose in both ways.
First, he suggests that the language in the Master Service
Contract between Continental and Great Western stating
"work will [be] performed to the full and complete
satisfaction of Continental" is sufficiently ambiguous
to raise a question of fact about retained control. See
Madler, 467 N.W.2d at 713. We disagree. The contract
does not provide that Continental will supervise, inspect, or
direct Great Western's work. In fact, the express terms
of the contract place the burden of safety on Great Western,
[Great Western] warrants that it is an expert in the work it
will perform, that its employees and agents have been trained
to follow all applicable laws, rules, and regulations and
work safely, and that all of its equipment has been
thoroughly tested and inspected and is safe, sufficient and
free of any defects, latent or otherwise. [Great Western]
acknowledges that Continental will rely upon these
Br. in Support of Motion for Summary Judgment, Ex. 1, Dist.
Ct. Dkt. 33.
Vandewarker contends that Continental actually exercised
sufficient retained control over Great Western's work to
create a duty to its employees. However, "merely
providing equipment [to the employee of one's independent
contractor] is not the kind of control that creates a
duty." Kristianson v. Flying J Oil & Gas,
Inc., 553 N.W.2d 186, 190 (N.D. 1996). The employer must
also "directly supervise or control its use, or
instruct the independent contractor's employee on use
of the equipment." Id. An employer's
"interest in safety at the jobsite" is similarly
insufficient to impose a duty. Pechtl, 1997 ND 161,
¶ 17, 567 N.W.2d at 817. Thus, while it is undisputed
that Continental owned and provided the staircase,
Vandewarker has failed to demonstrate that Continental
directly supervised his work or instructed him on the use of
the well site equipment. Absent a premises liability
framework, Continental's control over the stairs and
interest in safety at the well site are irrelevant; it is its
lack of control over the "method, manner, and operative
detail" of Vandewarker's work that is dispositive.
Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445,
448 (N.D. 1994). Because Continental did not control
Vandewarker's work nor instruct him on the use of the
equipment, it did not owe him a duty. Absent a duty,
Continental cannot be liable for negligence. See
Pechtl, 1997 ND 161, ¶ 7, 567 N.W.2d at 816.
Therefore, the district court did not err in granting summary
judgment to Continental.
also argues that Continental's failure to answer his
amended complaints, filed after the summary judgment
briefing, requires that all allegations in those amended
complaints be deemed admitted in his favor pursuant to
Fed.R.Civ.P. 8(b)(6), making summary judgment improper. As
Continental conceded at oral argument, it should have filed
answers in response to the amended complaints. However, the
parties presented extensive summary judgment briefing before
the district court, and Vandewarker could have supplemented
that record with additional arguments about Continental's
liability. Furthermore, because Vandewarker's amended
complaints contained no new claims against Continental,
Continental's first answer responded to all of the
substantive allegations made against it. See Edelman v.
Belco Title & Escrow, LLC, 754 F.3d 389, 395 (7th
Cir. 2014) (holding that a party's failure to respond to
a fourth amended complaint did not constitute an admission of
allegations when the party "had previously answered all
of the allegations against it"). Furthermore, to the
extent that Vandewarker makes a premises liability argument
on appeal, we will not consider it, as that claim was not
raised before the district court, even in his amended
complaints.See United States v. Oldham, 787
F.2d 454, 457 (8th Cir. 1986) ("Absent extraordinary