[¶ 12] To establish an actionable negligence claim, a plaintiff must show a duty exists by the defendant to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. Whether a defendant owes a plaintiff a duty is generally a preliminary question of law for the court to decide; however, if the existence of a duty of care depends on resolving factual issues, then the facts must be resolved by the trier of fact.Pechtl v. Conoco, Inc., 1997 ND 161, ¶ 7, 567 N.W.2d 813.

Grewal v. N.D. Ass'n of Cnts., 2003 ND 156, ¶ 9, 670 N.W.2d 336. “To establish a cause of action for negligence, a plaintiff must show the defendant has a duty to protect the plaintiff from injury.” Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. The existence of a duty is generally a question of law for the court to decide.

[¶ 10] Under North Dakota law, an employer of an independent contractor generally is not liable for the acts or omissions of the independent contractor. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 14, 623 N.W.2d 382. However, Restatement (Second) of Torts § 414 (1965) provides an employer may be liable for an independent contractor's work if the employer retains control over the independent contractor's work:

Under North Dakota law, a plaintiff must show that the defendant has a duty to protect the plaintiff from injury to establish a claim for negligence. Grewal v. N.D. Ass'n of Counties and Nw. Contracting, Inc., 670 N.W.2d 336, 339 (N.D.2003) (“Negligence 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.”); Rogstad v. Dakota Gasification Co., 623 N.W.2d 382, 385 (N.D.2001). The existence of a duty is generally a question of law for the court to decide.

[¶ 15] On appeal, Williams contends the jury was unable to distinguish Home Heating as an independent contractor when assessing fault and damages and that the omission of this instruction denied it a fair trial. Under North Dakota law, one who employs an independent contractor is generally not liable for the negligence of the independent contractor. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 14, 623 N.W.2d 382. This Court has noted the Second Restatement of Torts provides an exception to the general rule where an employer retains control over the independent contractor's work: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

"To establish a cause of action for negligence, a plaintiff must show the defendant has a duty to protect the plaintiff from injury." Rogstad v. Dakota Gasification Co., 623 N.W.2d 382, 385 (N.D. 2001). "Negligence 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."

Control may be demonstrated by contractual provisions or through the employer's actual control of the contractor's work at the jobsite. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 16, 623 N.W.2d 382.

1992); Beckman v. Butte-Silver Bow County, 1 P.3d 348, 355 (Mont. 2000); Parrish v. Omaha Pub. Power Dist., 496 N.W.2d 902, 912 (Neb. 1993); Valdez v. Cillessen Son, Inc., 734 P.2d 1258, 1261 (N.M. 1987); Rogstad v. Dakota Gasification Co., 623 N.W.2d 382, 386, 389 (N.D. 2001); Byrd v. Merwin, 317 A.2d 280, 282 (Pa. 1974); Ashby v. Northwester Pub. Serv. Co., 490 N.W.2d 286, 290 (S.D. 1992); Thompson v. Jess, 979 P.2d 322, 326 (Utah 1999); Kelly v. Howard S. Wright Constr. Co., 582 P.2d 500, 505 (Wash. 1978); Summers v. Crown Constr. Co., 453 F.2d 998, 1000 (4th Cir. 1972) (applying West Virginia law).

"If no duty exists, there is no negligence." Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. Lake Country/Bouvette argues that Hanover's negligence claim fails as a matter of law because "this action arises out of contract."

An actionable negligence "consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of the duty." Groleau [v. Bjornson Oil Company , 2004 ND 55, ¶ 6, 676 N.W.2d 763 ]; Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. To establish an actionable negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury.