## Facts

- A homeowner contracted with a flooring retailer/installer to supply and install bathroom floor tile, a shower base, and related products.
- The retailer arranged for an independent contractor to perform installation work.
- The homeowner alleged the shower door was improperly installed, imploded, and caused damage requiring repainting of nearby door and trim.
- The retailer refused to pay for the repainting and related repairs.
- The homeowner filed a small-claims action using a standard affidavit form that did not specify whether the claim sounded in tort or contract.
- The retailer answered, demanded a jury trial, asserted defenses associated with negligence, invoked the economic-loss doctrine, and removed the case to district court.
- The retailer moved for summary judgment, arguing it could not be liable for negligence by its independent contractor.
- After the summary-judgment motion, the homeowner moved to amend to assert a breach-of-contract claim; the district court denied amendment as futile and entered judgment for the retailer.
- The homeowner appealed the judgment and the denial of leave to amend.

## Issues

1. Whether the retailer’s use of an independent contractor eliminated the homeowner’s ability to pursue a claim against the retailer arising from the installation work.
2. Whether the district court erred in denying leave to amend to assert a breach-of-contract claim as futile.

## Decision

- The court affirmed the determination that an employer is generally not vicariously liable in tort for an independent contractor’s negligence.
- The court held that delegation of contractual performance to an independent contractor does not preclude a breach-of-contract claim against the original contracting party.
- The court reversed the denial of leave to amend as futile because a contract claim against the retailer remained legally viable despite the independent contractor’s involvement.
- The court affirmed in part, reversed in part, and remanded for further proceedings on the homeowner’s contract claim.

## Legal Principles

- An employer of an independent contractor generally is not liable for the independent contractor’s negligence (tort rule).
- A contracting party cannot avoid contractual liability to the other contracting party by assigning or delegating performance to a third party.
- North Dakota recognizes an implied warranty of fitness for a particular purpose in construction contracts.
- Where damages are economic in nature and arise from a contractual relationship, the economic-loss doctrine may restrict recovery to contract remedies rather than tort claims.

## Conclusion

The court held that while the retailer was not vicariously liable in tort for negligence by its independent contractor, the retailer’s contractual duties to the homeowner were not extinguished by delegation; therefore, amendment to plead a breach-of-contract theory was not futile and the case was remanded for litigation of the contract claim.


Bakke v. Magi-Touch Carpet One Floor & Home, Inc., 920 N.W.2d 726 (N.D. 2018)