Victoria Jeffords v. BP Corporation North America ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐1533
VICTORIA JEFFORDS, as Administrator of
the Estate of DONALD JEFFORDS,
Plaintiff‐Appellant,
v.
BP PRODUCTS NORTH AMERICA INC., et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:15‐cv‐00055‐TLS — Theresa L. Springmann, Judge.
____________________
ARGUED DECEMBER 4, 2019 — DECIDED JUNE 29, 2020
____________________
Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Donald Jeffords was a crane op‐
erator on a construction project at an oil refinery. One day at
work he fell seven feet from the catwalk on the body of a crane
and injured his feet and back. He sued the project owner and
several of its contractors for negligence. While this lawsuit
was pending, Jeffords died, apparently of unrelated causes, so
2 No. 19‐1533
the suit is now being prosecuted by his widow, Victoria Jef‐
fords, as his estate’s administrator. The district court granted
the defendants’ motions for summary judgment, finding that
none of the defendants whom Jeffords sued owed him a duty
of care. We affirm.
I. Background
The material facts are undisputed. Defendant BP Products
North America owns and operates an oil refinery in Whiting,
Indiana. As part of a large‐scale modernization project at the
refinery, BP contracted with defendant Fluor Constructors In‐
ternational to provide engineering, procurement, and con‐
struction management services. BP and Fluor each entered
into separate contracts with defendant MC Industrial (MCI)
to provide construction services. BP also contracted with Cen‐
tral Rent‐a‐Crane, Donald Jeffords’s employer, to provide
crane operation services. Central had no contractual relation‐
ship with Fluor or MCI, and Central is not a defendant be‐
cause the workers’ compensation system would apply to Jef‐
fords’s injuries on the job.
On May 4, 2013, Jeffords was walking on the catwalk of the
crane he operated for Central and inspecting the crane’s fluid
levels. The catwalk was seven feet above the ground. It was
only thirteen inches wide and lacked a guardrail. Jeffords lost
his balance and fell onto the asphalt below. He fractured both
feet, requiring surgery, and he injured his back.
Jeffords filed this lawsuit in state court, and defendants re‐
moved to federal court based on diversity of citizenship. Jef‐
fords alleged negligence against BP, Fluor, and MCI. Jeffords
died in 2015, survived by Victoria Jeffords and two daughters.
No. 19‐1533 3
In August 2018, the district court granted BP and MCI’s mo‐
tions for summary judgment, 2018 WL 3819251 (Aug. 10,
2018); in February 2019, it granted Fluor’s separate motion.
2019 WL 954818 (Feb. 27, 2019). Both orders held in relevant
part that none of these defendants owed Jeffords a duty of
care. The district court entered a final judgment for the de‐
fendants, and this appeal followed. We have jurisdiction un‐
der 28 U.S.C. § 1291.
II. Analysis
We review de novo the district court’s grants of summary
judgment. Lewitton v. ITA Software, Inc., 585 F.3d 377, 379 (7th
Cir. 2009). Summary judgment is appropriate when there are
no genuine disputes of material fact and the moving parties
are entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). Questions of interpretation of written contracts, on
which this case hinges, are often well‐suited for summary
judgment. Lewitton, 585 F.3d at 379.
We apply Indiana substantive law to this suit, see Erie R.R.
Co. v. Tompkins, 304 U.S. 64 (1938), because neither side dis‐
putes that it applies. Wood v. Mid‐Valley Inc., 942 F.2d 425, 426–
27 (7th Cir. 1991). Under Indiana law, a plaintiff asserting a
negligence claim must prove that the defendant owed him a
duty and breached that duty in a way that caused injury to
the plaintiff. Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004).
“The duty, when found to exist, is the duty to exercise reason‐
able care under the circumstances.” Stump v. Indiana Equip‐
ment Co., 601 N.E.2d 398, 402 (Ind. App. 1992). “Absent a duty,
there can be no breach of duty and thus no negligence or lia‐
bility based upon the breach.” Peters, 804 N.E.2d at 738. As a
matter of federal procedure, see Byrd v. Blue Ridge Rural Elec.
Coop., Inc., 356 U.S. 525, 537 (1958), whether a duty exists is a
4 No. 19‐1533
question of law determined by the court. Dunn v. Menard, Inc.,
880 F.3d 899, 906 (7th Cir. 2018).
It is a “general common law notion” that control equals
responsibility. Stropes ex rel. Taylor v. Heritage House Children’s
Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 252 (Ind. 1989) (quota‐
tion marks and citation omitted). An employer, who controls
working conditions, see GKN Co. v. Magness, 744 N.E.2d 397,
402–03 (Ind. 2001), must take reasonable care to provide its
employees with a safe place to work, including safe equip‐
ment. City of South Bend v. Estate of Rozwarski, 404 N.E.2d 19,
21 (Ind. App. 1980), citing Evansville & Terre Haute R.R. Co. v.
Duel, 33 N.E. 355 (Ind. 1892), among others. The principal of
an independent contractor, who does not control the contrac‐
tor’s working conditions, see Prest‐O‐Lite Co. v. Skeel, 106 N.E.
365, 367 (Ind. 1914), ordinarily owes the contractor’s employ‐
ees no similar duty. Ryan v. TCI Architects/Engineers/Contrac‐
tors, Inc., 72 N.E.3d 908, 913 (Ind. 2017), citing Prest‐O‐Lite, 106
N.E. at 367, and Stumpf v. Hagerman Construction Corp., 863
N.E.2d 871, 876 (Ind. App. 2007), among others.
The principal may, however, assume by contract a “spe‐
cific” nondelegable duty of care toward its contractor’s em‐
ployees. Ryan, 72 N.E.3d at 913, quoting Bagley v. Insight
Commc’ns Co., 658 N.E.2d 584, 586 (Ind. 1995). Similarly, the
construction manager of a construction project, even if it is not
itself the principal of any contractor, may assume an other‐
wise nonexistent duty to provide a reasonably safe jobsite ei‐
ther by contract or “gratuitously or voluntarily” by its con‐
duct. Hunt Construction Group, Inc. v. Garrett, 964 N.E.2d 222,
226–27, 229 (Ind. 2012); see generally id. at 224–25 (describing
construction management).
No. 19‐1533 5
In this case, the estate maintains that each defendant as‐
sumed a duty of care toward Jeffords on one or more of the
theories above. Each of the estate’s arguments is defeated by
the undisputed material facts and contractual provisions in
the record, and by the limits of the relevant Indiana Supreme
Court cases.
A. Per Se Duty of General Contractor or Construction Man‐
ager
First, the estate argues that BP, MCI, and Fluor all may be
characterized as general contractors or construction managers
and that all therefore assumed duties of care toward Jeffords.
Even assuming the dubious premise, the conclusion is incor‐
rect. As the district court explained, in Ryan and Hunt the In‐
diana Supreme Court held respectively that general contrac‐
tors and construction managers “can owe duties to the em‐
ployees of their independent contractors,” not that they “al‐
ways owe duties to the employees of their independent con‐
tractors.” Whether a duty exists depends “solely” on the lan‐
guage of the relevant contracts. Ryan, 72 N.E.3d at 914.
B. MCI’s Duty Toward Subcontractors’ Employees
Second, the estate argues that, because MCI was contrac‐
tually charged by Fluor with responsibility for the safety of its
subcontractors’ employees, MCI owed Jeffords a duty of care.
See Fluor‐MCI contract § 6.02 (“Contractor will be directly re‐
sponsible for subcontractor safety and performance while on
Site.”). But Central, Jeffords’s employer, was not MCI’s sub‐
contractor; its only contractual relationship—at least the only
one appearing in the record—was with BP. MCI therefore
owed no duty of care to Jeffords under this provision of its
contract with Fluor.
6 No. 19‐1533
C. Duty to Comply and to Monitor Compliance with Safety
Standards
Third, the estate argues that, because BP, Fluor, and MCI
were each contractually required to comply with certain pub‐
lic and private safety standards and to monitor others’ com‐
pliance with them as well, the contracts imposed on each of
them duties of care toward Jeffords. We disagree.
Ryan held that a general contractor on a construction pro‐
ject had assumed a duty of care toward all onsite workers
based on four features of its contract with the project owner.
First, there was an “explicit assumption of responsibility for
safety” by the general contractor. 72 N.E.3d at 915. Second,
there was a “demonstrate[d] … intent to control” the subcon‐
tractors’ work. Id. Third and fourth, playing supporting roles,
there was a “general recognition” of the importance of work‐
place safety by the general contractor and a requirement that
the general contractor designate a safety representative “to
prevent accidents.” Id.
By contrast, Hunt held that a construction manager had
not assumed a duty of care toward all onsite workers by its
contract with the project owner. First, the contract contained
no language imposing on the construction manager “any spe‐
cific legal duty to or responsibility for the safety of all employ‐
ees at the construction site,” though it did assume a duty to
“review and monitor contractors’ safety programs.” 964
N.E.2d at 227. Second, the contract provided that the con‐
struction manager’s performance under the contract was for
the benefit of the project owner and no one else. Id. Third, the
contract provided that the construction manager would not
have “direct control over or charge of the acts or omissions”
of any contractor. Id.
No. 19‐1533 7
As in Hunt, the contracts in this case do not contain lan‐
guage imposing on any defendant a specific legal duty to‐
ward, or expressly assigning responsibility for the safety of,
Central’s employees. See Hunt, 964 N.E.2d at 227 (distinguish‐
ing three cases involving direction to take “reasonable” or
“necessary precautions” for employee safety); compare Fluor‐
MCI contract § 6.02 (“Contractor will be directly responsible
for subcontractor safety and performance while on Site.”).
And unlike Ryan, where a duty was found, no language in
these contracts charges any defendant to “at all times exercise
complete and exclusive control” over Central’s working con‐
ditions. 72 N.E.3d at 915; see also Hunt, 964 N.E.2d at 228, dis‐
tinguishing Perryman v. Huber, Hunt & Nichols, Inc., 628
N.E.2d 1240, 1242 (Ind. App. 1994), where “construction man‐
ager had exclusive authority to direct and control work on the
entire project.”
The contractual compliance and monitoring requirements
imposed on or by BP, Fluor, and MCI do not distinguish this
case from Hunt, where materially identical provisions did not
overcome the contract’s failure to assign responsibility for
and control over jobsite safety to the construction manager.
See 964 N.E.2d at 227 n.6, incorporating Hunt Construction
Group, Inc. v. Garrett, 938 N.E.2d 794, 801–02 (Ind. App. 2010);
see also Merritt v. Bethlehem Steel Corp., 875 F.2d 603, 607 (7th
Cir. 1989) (applying Indiana law) (a duty is not assumed
“merely because [defendant] may have a right to inspect and
test the work, approve of the work and/or employees of the
independent contractor or require the contractor to follow
company safety rules”).
8 No. 19‐1533
The closest the estate comes to avoiding Hunt and satisfy‐
ing Ryan is to point to the following provision in the contract
between BP and Fluor:
Contractor [Fluor] shall take all reasonable pre‐
cautions, including those related to sanitation
and health for the safety of its personnel and the
personnel of others, to protect all Work done
and all materials furnished under the Contract
… from loss or damage by the processes of con‐
struction, by the action of the elements or by any
other cause or causes.
Notably, although the contract between Fluor and MCI im‐
poses a textually identical obligation on MCI, the first time the
estate cited it was in opposition to Fluor’s later‐filed summary
judgment motion—after the district court had already
pointed it out in granting BP and MCI’s earlier‐filed motions.
In any event, on the merits it is clear that this provision
was written to protect property, not people. It protected “all
materials furnished” and “all Work done,” where “Work” is
defined as “the engineering, procurement, fabrication man‐
agement, construction, [and] construction management ser‐
vices to be performed under this Contract.” If there were any
doubt, it would be dispelled by a separate provision of the
contract that “Contractor shall not be responsible for con‐
struction means, methods, techniques, procedures, or safety
precautions of … Company’s Third Party contractors … .” See
Ryan, 72 N.E.3d at 914 (“We look at the contract as a whole”).
The district court correctly granted summary judgment based
on the contracts in this case.
No. 19‐1533 9
D. Duty to Comply with OSHA Regulations
Fourth, the estate suggested in its brief, and contended
more forcefully at oral argument, that Jeffords’s injuries were
proximately caused by the defendants’ failure to comply with
regulations promulgated under the Occupational Safety and
Health Act (OSHA), 29 U.S.C. § 651 et seq., in breach of their
contractual promises to do so. But OSHA regulations cannot
“be used to expand or otherwise affect [a defendant’s] com‐
mon law duties or liabilities under a negligence per se theory,
or as evidence of an expanded standard of care.” Merritt v.
Bethlehem Steel Corp., 875 F.2d 603, 608 (7th Cir. 1989), citing
29 U.S.C. § 653(b)(4) (federal act); Ind. Code § 22–8–1.1–48.3
(state analogue); Hebel v. Conrail, Inc., 475 N.E.2d 652, 658 (Ind.
1985).
Without any power to create or expand duties in tort, the
defendants’ contractual duties to comply with OSHA regula‐
tions must remain just that: contractual promises that cannot
be enforced by anyone not a party to them, in privity with a
party to them, or an intended beneficiary of them. OEC‐
Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314–15 (Ind. 1996).
Jeffords was not a party or in privity with a party to any of the
defendants’ contracts, and the estate does not appeal the dis‐
trict court’s sound conclusion that he was not a third‐party
beneficiary of them.
E. Gratuitous Assumption of Duty by Conduct
Fifth, the estate argues that BP, Fluor, and MCI each as‐
sumed duties of care toward Jeffords by their conduct. To as‐
sume gratuitously by conduct a duty not otherwise imposed,
Hunt held, a construction manager “must undertake specific
10 No. 19‐1533
supervisory responsibilities beyond those set forth in the orig‐
inal construction documents.” 964 N.E.2d at 230. The plaintiff
in Hunt pointed to no act undertaken by the construction
manager that its contract with the project owner did not al‐
ready require it to perform, so no gratuitous assumption had
been shown. Id. at 231.
In this case, the estate points to no specific responsibility
undertaken by any defendant that its contracts did not require
it to perform. As the district court observed, the estate pointed
only to contractual obligations it thought defendants “did not
perform.” The estate’s argument is self‐defeating.
F. Principals’ Vicarious Liability
Sixth and finally, the estate argues that, because Fluor,
MCI, and Central were BP’s agents, BP is vicariously liable for
their negligence. Because we have concluded that neither
Fluor nor MCI owed Jeffords a duty of care, there can be no
negligence on their part for which to hold BP vicariously lia‐
ble. Peters v. Foster, 804 N.E.2d 736, 738 (Ind. 2004). Even as to
Central, the estate’s conclusion is incorrect. Principals are vi‐
cariously liable for the torts of their employees committed in
the scope of employment, but not every agent is an employee.
Some are independent contractors, for whose negligence the
principal is usually not liable. See generally Sword v. NKC Hos‐
pitals, Inc., 714 N.E.2d 142, 147–48 & n.5 (Ind. 1999).
The estate’s contrary assertion rests on stray dicta from
1957 distinguishing imprecisely between “agents” and “inde‐
pendent contractors,” rather than more precisely between
“servants” or “employees” on one hand and independent
contractors on the other. See Western Adjustment & Inspection
Co. v. Gross Income Tax Div., 142 N.E.2d 630, 648–49 (Ind. 1957).
No. 19‐1533 11
There is of course no contention here that Fluor, MCI, or Cen‐
tral were BP’s employees.
Plaintiff’s claims are defeated by unambiguous contrac‐
tual provisions. The district court correctly held as a matter of
law that none of these defendants owed Jeffords a duty of
care. Its judgment is therefore
AFFIRMED.