### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1533

V ICTORIA J EFFORDS

, as Administrator of

the Estate of D ONALD J EFFORDS

, Plaintiff

‐ Appellant

,

v.

BP P RODUCTS N ORTH A MERICA I NC

., 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

.

____________________

A RGUED D ECEMBER 4, 2019

— D ECIDED J UNE 29, 2020

____________________

Before F LAUM

, R IPPLE

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. Donald Je ff ords was a crane op

‐

erator on a construction project at an oil re fi nery. 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, Je ff ords died, apparently of unrelated causes, so2 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, fi nding that

none of the defendants whom Je ff ords sued owed him a duty

of care. We a ffi rm.

I. Background

The material facts are undisputed. Defendant BP Products

North America owns and operates an oil re fi nery in Whiting,

Indiana. As part of a large

‐ scale modernization project at the

re fi nery, 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 Je ff ords’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, Je ff ords was walking on the catwalk of the

crane he operated for Central and inspecting the crane’s fl uid

levels. The catwalk was seven feet above the ground. It was

only thirteen inches wide and lacked a guardrail. Je ff ords lost

his balance and fell onto the asphalt below. He fractured both

feet, requiring surgery, and he injured his back.

Je ff ords fi led 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. Je ff ords

died in 2015, survived by Victoria Je ff ords 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 Je ff ords a duty of

care. The district court entered a fi nal 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. Lewi tt on 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 ma tt er of law. Fed. R. Civ. P.

56(a). Questions of interpretation of wri tt en contracts, on

which this case hinges, are often well

‐ suited for summary

judgment. Lewi tt on

, 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 plainti ff 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 plainti ff

. 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

ma tt er of federal procedure, see Byrd v. Blue Ridge Rural Elec.

Coop., Inc.

, 356 U.S. 525, 537 (1958), whether a duty exists is a4 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 omi tt ed). 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

‐

ci fi c” 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. Garre tt

, 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 Je ff ords 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 Je ff ords.

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 Je ff ords 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, Je ff ords’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 Je ff ords 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 Je ff ords. 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

‐

ci fi c 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 bene fi t 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 speci fi c 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. Garre tt

, 938 N.E.2d 794, 801–02 (Ind. App. 2010);

see also Merri tt 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 fi rst time the

estate cited it was in opposition to Fluor’s later

‐ fi led summary

judgment motion—after the district court had already

pointed it out in granting BP and MCI’s earlier

‐ fi led motions.

In any event, on the merits it is clear that this provision

was wri tt en to protect property, not people. It protected “all

materials furnished” and “all Work done,” where “Work” is

de fi ned 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 Je ff ords’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 a ff ect [a defendant’s] com

‐

mon law duties or liabilities under a negligence per se theory,

or as evidence of an expanded standard of care.” Merri tt 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 bene fi ciary of them. OEC

‐

Diasonics, Inc. v. Major

, 674 N.E.2d 1312, 1314–15 (Ind. 1996).

Je ff ords 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

bene fi ciary 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 Je ff ords by their conduct. To as

‐

sume gratuitously by conduct a duty not otherwise imposed,

Hunt held, a construction manager “must undertake speci fi c10 No. 19

‐ 1533

supervisory responsibilities beyond those set forth in the orig

‐

inal construction documents.” 964 N.E.2d at 230. The plainti ff

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 speci fi c 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 fi nally, 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 Je ff ords 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 commi tt ed 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.

Plainti ff ’s claims are defeated by unambiguous contrac

‐

tual provisions. The district court correctly held as a ma tt er of

law that none of these defendants owed Je ff ords a duty of

care. Its judgment is therefore

AFFIRMED.