T. M. Kavanagh, J.
Plaintiff is here on leave granted from the Court of Appeals’ affirmation of the trial court’s grant of a directed verdict in favor of defendant under both counts of a negligence complaint.
Defendant Grlen Dalman entered into a contract with the city of Otsego to repair, clean, and paint a 150,000-gallon elevated water storage tank owned by the city. The consulting engineering firm of Williams. & Works prepared all the specifications for the contract, was designated as engineer in the contract, and had complete charge of all inspections. The contract divided the work to be done into various parts. Defendant contractor was obligated to notify the engineer 48 hours in advance of the time he proposed to begin any one of the several parts of the work so that the engineer could provide for inspection of the work completed.
Plaintiff Robert Clark was the employee whom Williams & Works designated to be in charge of the project and make all the inspections. Defendant Dalman knew of plaintiff’s designation and talked with plaintiff several times about the work. Plaintiff made inspections of the tank before the work began and during the repairs. Plaintiff’s proofs indicated that defendant failed to notify Williams & Works that the cleaning of the tank was finished, and instead immediately applied the NO-OX-ID to [257]*257the walls and floor of the tank as well as to the ladder extending from the roof hatch down into the tank.
Witnesses testified that NO-OX-ID Is extremely slippery, like lard or grease. The contract specifications required defendant to coat the entire ladder up to about two feet from the roof with NO-OX-ID.
Plaintiff testified that he went to the premises for the purpose of inspection. In attempting to look into the tank, he discovered that even with a flashlight he was unable to see inside the tank. Therefore, he proceeded to descend into the water tank and slipped on the NO-OX-ID coating applied to the tank and ladder by defendant. Plaintiff suffered serious injuries when he fell to the bottom of the tank.
Plaintiff instituted suit in April 1963, by complaint, alleging in paragraph 9 of the first count that plaintiff’s personal injuries were proximately caused by defendant’s breach of warranty and failure to notify Williams & Works or plaintiff of the stage of the work involved and the fact that the water tank had been coated with a greasy, compound, of which plaintiff had no knowledge.
Count 2 was a negligence count and paragraph 15 thereof read as follows: : .
“15. That plaintiff’s injuries and damages were caused solely by the negligence of defendant in the following particulars:
“(a) Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should have been known that such compound created a slippery and dangerous condition to anyone walking there.
“(b) Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should [258]*258have been known that plaintiff was going to inspect the tank and would in all likelihood fall as the result of said compound.
“(c)-Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should have been known that such compound was hard to see and observe and would create a highly hazardous condition for anyone walking in the tank.
“(d) Failure to provide plaintiff with assistance for his inspection when it was known or should have been known that assistance was needed to prevent .injury to plaintiff as a result of the greasy coating-on the tank, of which plaintiff had no knowledge.”
Defendant answered, and as to count 2, paragraph 15, denied that plaintiff’s injuries and damages were caused solely by the negligence of defendant. Defendant denied that he failed to warn Williams & Works or plaintiff that the water tank had been coated. He denied the use of any greasy compound except NO-OX-ID which was prescribed in the specifications, and further alleged this type of coating was well known to Williams & Works and to plaintiff. Defendant stated that Williams & Works and plaintiff knew or should have known that the tank had been coated with the prescribed NO-OX-ID and asserted the truth to be that plaintiff, with full knowledge of the condition existing, could or should have exercised such care for his own safety as to avpid any likelihood of a fall as a result of the compound. Defendant further denied that the coating- on the interior of the tank was difficult to see and denied that said coating created a highly hazardous condition, and alleged that plaintiff in the exercise of reasonable care in the circumstances could and should have avoided any injury to himáélf. Defendant further asserted that he at all times 'stood ready -to provide plaintiff whatever assistance [259]*259he might require in the inspection of said tank. An affirmative defense of contributory negligence was also pleaded.
At the conclusion of the trial, the trial court directed a verdict for defendant on the contract count, stating:
“Count 1, as the court sees it, is founded on allegations of breach of contract, but in essence it is an ex delicto action. That is, when you look at the substance of the claims and allegations it is ex delicto, a tort.
“Now, research of counsel and of the court discloses that in the State of Michigan we are committed to the rule that tort may not be founded upon the failure to perform a contract, in other words, nonfeasance.
“Tort may be founded upon misfeasance, that is the negligent performance of a contract, but not the failure to perform.”
As to count 2, the trial court concluded there was no negligence on the part of the defendant and, therefore, no fact question for the jury to decide under count 2, and directed a verdict of no cause for action on both counts.
The Court of Appeals affirming the trial court said (1 Mich App 513):
“This case should be decided on the issue of legal duty. The question, then, is whether the defendant Dalman had a duty to protect those who might enter the water tank by refraining from coating the interior of the tank with a slippery compound without notification to the engineering firm supervising this work. This is strictly a legal question, since no material facts are in dispute.” (p 519)
“This Court finds that the failure of the defendant to notify Williams & Works of completion of the various stages of the work on the water tank was not unreasonably dangerous conduct. * * *
[260]*260“The record shows that the plaintiff knew the contract required the defendant to coat the interior of the tank, including the ladder, with NO-OX-ID, and that plaintiff had been in the tank on two occasions prior to his accident. Plaintiff himself testified' that he had extensive experience in the inspection of water tanks.
Free access — add to your briefcase to read the full text and ask questions with AI
T. M. Kavanagh, J.
Plaintiff is here on leave granted from the Court of Appeals’ affirmation of the trial court’s grant of a directed verdict in favor of defendant under both counts of a negligence complaint.
Defendant Grlen Dalman entered into a contract with the city of Otsego to repair, clean, and paint a 150,000-gallon elevated water storage tank owned by the city. The consulting engineering firm of Williams. & Works prepared all the specifications for the contract, was designated as engineer in the contract, and had complete charge of all inspections. The contract divided the work to be done into various parts. Defendant contractor was obligated to notify the engineer 48 hours in advance of the time he proposed to begin any one of the several parts of the work so that the engineer could provide for inspection of the work completed.
Plaintiff Robert Clark was the employee whom Williams & Works designated to be in charge of the project and make all the inspections. Defendant Dalman knew of plaintiff’s designation and talked with plaintiff several times about the work. Plaintiff made inspections of the tank before the work began and during the repairs. Plaintiff’s proofs indicated that defendant failed to notify Williams & Works that the cleaning of the tank was finished, and instead immediately applied the NO-OX-ID to [257]*257the walls and floor of the tank as well as to the ladder extending from the roof hatch down into the tank.
Witnesses testified that NO-OX-ID Is extremely slippery, like lard or grease. The contract specifications required defendant to coat the entire ladder up to about two feet from the roof with NO-OX-ID.
Plaintiff testified that he went to the premises for the purpose of inspection. In attempting to look into the tank, he discovered that even with a flashlight he was unable to see inside the tank. Therefore, he proceeded to descend into the water tank and slipped on the NO-OX-ID coating applied to the tank and ladder by defendant. Plaintiff suffered serious injuries when he fell to the bottom of the tank.
Plaintiff instituted suit in April 1963, by complaint, alleging in paragraph 9 of the first count that plaintiff’s personal injuries were proximately caused by defendant’s breach of warranty and failure to notify Williams & Works or plaintiff of the stage of the work involved and the fact that the water tank had been coated with a greasy, compound, of which plaintiff had no knowledge.
Count 2 was a negligence count and paragraph 15 thereof read as follows: : .
“15. That plaintiff’s injuries and damages were caused solely by the negligence of defendant in the following particulars:
“(a) Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should have been known that such compound created a slippery and dangerous condition to anyone walking there.
“(b) Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should [258]*258have been known that plaintiff was going to inspect the tank and would in all likelihood fall as the result of said compound.
“(c)-Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should have been known that such compound was hard to see and observe and would create a highly hazardous condition for anyone walking in the tank.
“(d) Failure to provide plaintiff with assistance for his inspection when it was known or should have been known that assistance was needed to prevent .injury to plaintiff as a result of the greasy coating-on the tank, of which plaintiff had no knowledge.”
Defendant answered, and as to count 2, paragraph 15, denied that plaintiff’s injuries and damages were caused solely by the negligence of defendant. Defendant denied that he failed to warn Williams & Works or plaintiff that the water tank had been coated. He denied the use of any greasy compound except NO-OX-ID which was prescribed in the specifications, and further alleged this type of coating was well known to Williams & Works and to plaintiff. Defendant stated that Williams & Works and plaintiff knew or should have known that the tank had been coated with the prescribed NO-OX-ID and asserted the truth to be that plaintiff, with full knowledge of the condition existing, could or should have exercised such care for his own safety as to avpid any likelihood of a fall as a result of the compound. Defendant further denied that the coating- on the interior of the tank was difficult to see and denied that said coating created a highly hazardous condition, and alleged that plaintiff in the exercise of reasonable care in the circumstances could and should have avoided any injury to himáélf. Defendant further asserted that he at all times 'stood ready -to provide plaintiff whatever assistance [259]*259he might require in the inspection of said tank. An affirmative defense of contributory negligence was also pleaded.
At the conclusion of the trial, the trial court directed a verdict for defendant on the contract count, stating:
“Count 1, as the court sees it, is founded on allegations of breach of contract, but in essence it is an ex delicto action. That is, when you look at the substance of the claims and allegations it is ex delicto, a tort.
“Now, research of counsel and of the court discloses that in the State of Michigan we are committed to the rule that tort may not be founded upon the failure to perform a contract, in other words, nonfeasance.
“Tort may be founded upon misfeasance, that is the negligent performance of a contract, but not the failure to perform.”
As to count 2, the trial court concluded there was no negligence on the part of the defendant and, therefore, no fact question for the jury to decide under count 2, and directed a verdict of no cause for action on both counts.
The Court of Appeals affirming the trial court said (1 Mich App 513):
“This case should be decided on the issue of legal duty. The question, then, is whether the defendant Dalman had a duty to protect those who might enter the water tank by refraining from coating the interior of the tank with a slippery compound without notification to the engineering firm supervising this work. This is strictly a legal question, since no material facts are in dispute.” (p 519)
“This Court finds that the failure of the defendant to notify Williams & Works of completion of the various stages of the work on the water tank was not unreasonably dangerous conduct. * * *
[260]*260“The record shows that the plaintiff knew the contract required the defendant to coat the interior of the tank, including the ladder, with NO-OX-ID, and that plaintiff had been in the tank on two occasions prior to his accident. Plaintiff himself testified' that he had extensive experience in the inspection of water tanks. This Court concludes that the defendant could not reasonably have foreseen or anticipated plaintiff’s accident as the result of his failure to give the contractually required notice to plaintiff’s employer.” (p 521)
On appeal to this Court we have two questions:
First. Whether plaintiff’s cause of action, if he has one, is in tort or in contract. If count 1 was intended to state a cause of action on the contract, and we conclude it does, then the trial court was correct in directing a verdict for the defendant on this count. Since the plaintiff was not a party to the contract in any sense of the term, he cannot enforce an obligation created by it. Neither the contract nor any of its provisions was designed to give him a benefit of any kind. The trial court was correct in concluding that in essence plaintiff’s remedy was an action ex delicto sounding in tort. See Hampson v. Larkin (1945), 318 Mass 716 (63 NE2d 888).
Second. Count 2, however, presents a more difficult question. In order for plaintiff to be entitled to go to the jury on the negligence count, he must prove: first, the existence of a legal duty on the part of the defendant to the plaintiff; second, failure on the part of defendant to exercise ordinary care in the performance of his duties; and third, damage to the plaintiff proximately resulting from negligent performance of duties by defendant.
Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and [261]*261such duty must be imposed by law. The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person- or property of others. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another. Pinnix v. Toomey (1955), 242 NC 358, 362 (87 SE2d 893).
Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it may be a general one owed by the defendant to the public, of which the plaintiff is a part. Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. But it must be kept in mind that the contract creates only the relation out of which arises the common-law duty to exercise ordinary care. Thus in legal contemplation the contract merely creates the state of things which furnishes the occasion of the tort. This being so, the existence of a contract is ordinarily a relevant factor, competent to be alleged and proved in a negligence action to the extent of showing the relationship of the parties and the nature and extent of the common-law duty on which the tort is based. Pinnix v. Toomey, supra, p 362, and cases therein cited.
[262]*262A favorable-to-plaintiff view of the evidence indicates that pursuant to the contract between defendant and the city of Otsego, plaintiff was the duly authorized inspector of the project with obligations of general inspection as well as the specific duty of inspecting the various stages of the repair operation before defendant was authorized to proceed to the next step in the repair work. Far from being a trespasser on the premises, plaintiff -was at least a licensee, or possibly an invitee.
In Anderson v. Deming Motor Sales, 371 Mich 223, 229, 230, this Court quoted with approval from Cabana v. City of Hart, 327 Mich 287, 305 (19 ALR2d 333), as follows:
“ ‘In considering the question whether defendant was entitled to a directed verdict, the testimony must he construed as strongly as possible in favor of the plaintiff. (Citing cases.) The specific inquiry is whether this Court can say, as a matter of law, giving to plaintiff’s proofs the strongest probative force to which they are entitled, that the evidence was not sufficient to justify submitting to the jury the questions of defendant’s negligence and its knowledge or notice of the situation.’ ”
Might reasonable minds differ as to whether defendant Dalman was guilty of negligence in failing to warn plaintiff of the NO-OX-ID coating on the tank in view of the following evidence? Defendant had previously called plaintiff requesting inspections; plaintiff was lawfully on the premises pursuant to his duties as the inspector; defendant knew there was only a two-foot trap door through which light could reach the inside of the tank and through which plaintiff would have to push his head and shoulders to view the inside of the tank; defendant knew or in the exercise of reasonable care ought to have known that plaintiff would have to enter the tank; defendant knew his contract required him to notify plaintiff’s employer of the completion of the cleaning process in order that inspection might be made before he proceeded to apply the NO-OX-ID, but despite this he failed to do so; NO-OX-ID is extremely slippery, like lard or grease.
From an examination of the facts in the light most favorable to plaintiff, we conclude reasonable [264]*264minds might so differ based on the facts in this record. Therefore, we must conclude that the trial court erroneously granted the motion for directed verdict under count 2 and that the Court of Appeals was in error in affirming the directed verdict.
Justice Kelly in his opinion discusses the subject of contributory negligence on the part of plaintiff. Admittedly this subject was not passed upon by the Court of Appeals nor by the trial court. Normally, under these circumstances, we would not pass on it here. However, a careful reading of the entire testimony would lead us to a conclusion that reasonable minds might differ as to- whether plaintiff was guilty of contributory negligence by entering the tank under the circumstances and in the manner indicated.
We conclude, therefore, that the question of contributory negligence of the plaintiff would be a question for the jury.
The judgment is reversed and a new trial granted. Plaintiff shall have costs.
Souris, O’Hara, and Adams, JJ., concurred with T. M. Kavanagh, J.
Defendant Dalman testified on direct examination as follows:
“Q. Now, some time prior to — shortly prior to November 27, 1961, yon called Williams & Works, did you not?
“A. Yes.
“Q. And you requested they send down an inspector, did you not?
“A. Yes.
“Q. And did you — did you at that time advise them of the status of the work ?
“A. I don’t know.
“Q. You do not know for sure?
“A. No.”
On cross-examination defendant Dalman testified as follows:
“Q. * * * Now, when was the first time you tallied with Mr. Clark after you entered into the contract?
“A. I couldn’t say. I don’t know.
“Q. Well, was it after the repair work was done?
“A. It was probably during. — sometime during the job, yes.
“Q. You talked to him once?
“A. Oh, no, I seen him more than that.
“Q. I see. Witness, you never at any time prior to the time that you put on the NO-OX-ID notified anybody at Williams & Works that it was ready for inspection, did you?
“A. Pardon me?
“Q. You never at any time, prior to putting on the NO-OX-ID notified anybody at Williams & Works they should come down and inspect the tanks, did you?
“A. Yes, I did.
“Q. Who did you notify?
“A. Bob.
“Q. When did you notify him?
“A. I don’t know when, but Bob was around the job several times. I also ealled him on the phone several times,”