specially concurring.
I agree that the instructions were inadequate, but for reasons different from those articulated by the majority. This is a negligence claim, not a contract claim. Under tort law, we must look to the specifications of negligence, not the contract, to see if the court adequately presented plaintiffs legal theories. Plaintiff alleged, inter alia, that defendant had failed to maintain preventively and failed to repair. The trial court correctly instructed the jury on defendant’s obligation to *311maintain preventively. However, when it instructed on defendant’s obligation to repair, it stated:
“[D]efendant would not be liable to plaintiff for failing to make repairs unless they [sic] had notice and a reasonable opportunity to make the repairs.”
Plaintiff excepted by saying:
“The others were the giving of special instruction number 2 of the defendant’s, and our reason for that is that we believe that those cases that are cited for that proposition are cases that state the defendant has a passive as opposed to an active duty, to inspect and perform preventative maintenance.”
The exception, though not a model of clarity, sufficiently advised the trial judge that the instruction was inadequate, because it failed to inform the jury that actual notice is not essential, and defendant could be liable if it had reason to know that repairs were necessary. Mathison v. Newton, 251 Or 362, 371, 446 P2d 94 (1968). I would reverse on that basis.