dissenting.
This case went to the jury on three separate counts: 1) breach of contract; 2) breach of the implied warranty of good workmanship; and 3) negligence. The jury found for the defendant on the first two counts, but held defendant liable on the negligence count. The district court then granted, post-verdict, judgment as a matter of law for the defendant on the negligence count. Plaintiff now seeks to have the jury verdict holding defendant liable for negligence reinstated, relief which the majority grants. I write separately to express my disagreement with the decision to reinstate the jury’s verdict on the negligence count.
An examination of the complaint and the jury instructions on the negligence and implied warranty of good workmanship counts reveals the standard of liability for both is substantially the same. Given this similarity, the jury’s verdict in favor of defendant on the implied warranty of good workmanship count and against defendant on the negligence count raises the specter of inconsistency. The best I believe the majority could do in this ease would be to hold these two verdicts inconsistent and order a new trial on the negligence count.
However, we need not order a new trial in this ease. As the majority correctly notes, the general rule in Michigan provides that a party to a contract may be held liable on a tort theory for violation of a duty independent of that contract. Mitchell v. General Motors Acceptance Corp., 176 Mich.App. 23, 439 N.W.2d 261, 266-67 (1989). Tort recovery under Michigan law, therefore, requires a duty independent from the contract itself upon which to base liability. See, e.g., id.; Loftis v. G.T. Products, Inc., 167 Mich.App. 787, 423 N.W.2d 358, 362-65 (1988). In this case, plaintiffs complaint, along with the jury instructions, failed to articulate any such independent duty. Rather, plaintiff simply alleged various breaches of the implied contractual duty to perform in a workmanlike manner. Because plaintiff failed to articulate *162any duty independent from the contract, plaintiffs negligence count is necessarily intertwined with the contract, rather than a separate and independent claim.
Under these circumstances, I would hold that plaintiff did not allege, nor prove, a negligence claim sufficient to submit to the jury. See Mitchell, 439 N.W.2d at 266-67 (failure to plead breach of any duty independent from the contract requires dismissal of negligence suit). Contrary to the majority, I would therefore affirm the decision of the district court.