               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 17-3789
                      ___________________________

                       Benjamin William Vandewarker

                     lllllllllllllllllllllPlaintiff - Appellant

                                         v.

                         Continental Resources, Inc.

                     lllllllllllllllllllllDefendant - Appellee

Wade Works LLC; Palmer Oil, Inc., formerly known as Palmer Mfg. & Tank, Inc.

                           lllllllllllllllllllllDefendants
                                   ____________

                  Appeal from United States District Court
                 for the District of North Dakota - Bismarck
                                ____________

                       Submitted: November 15, 2018
                          Filed: February 26, 2019
                               ____________

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
                         ____________

SHEPHERD, Circuit Judge.
      Benjamin Vandewarker, an employee of Great Western Resources (Great
Western), appeals the district court’s1 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.

       Continental 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.

       In June 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


      1
       The Honorable Daniel L. Hovland, then United States District Judge for the
District of North Dakota, now Chief Judge, United States District Court for the
District of North Dakota.

                                          -2-
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.

       “We 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).

       Because 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



                                           -3-
N.W.2d 709, 711 (N.D. 1991)). Whether such a duty exists is typically “a preliminary
question of law for the court.” Id.

       Under 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, stating:

      [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 representations.

Br. in Support of Motion for Summary Judgment, Ex. 1, Dist. Ct. Dkt. 33.

       Second, 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

                                          -4-
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.

       Vandewarker 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



                                          -5-
raised before the district court, even in his amended complaints.2 See United States
v. Oldham, 787 F.2d 454, 457 (8th Cir. 1986) (“Absent extraordinary circumstances,
we will not consider an issue raised for the first time on appeal.”). Throughout his
pleadings, Vandewarker attributed Continental’s alleged liability solely to its status
as an employer of an independent contractor, not as a premises owner. Thus, we have
reviewed only the summary judgment record addressed by the district court.

      We affirm.
                       ______________________________




      2
       Vandewarker’s amended complaints added other defendants as well as a claim
for products liability. Contrary to Vandewarker’s assertions at oral argument, no
facts were added to the complaints to suggest the addition of a premises liability
claim.

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