concurring specially.
I concur in the judgment affirming the jury’s award, but, for the reasons below, I do not agree with all that is said.52 Therefore, I concur specially.
As noted by the majority, Veasley dismissed her breach of contract claim against Monitronics, and the trial court, prior to trial, expressly limited the scope of the trial to address only whether Monitronics breached duties arising from its extra-contractual conduct. The trial court found the potential for such a breach based on an earlier representation by Monitronics’s former counsel that Monitronics’s contract did not require it to telephone Veasley. Therefore, the trial court concluded that any phone calls made to Veasley were voluntary undertakings outside the scope of the contract. Based on this theory, the trial court ruled that Monitronics could be subject to liability if it failed to exercise ordinary care with respect to making those phone calls, if it increased the risk of harm to her, or if it violated a self-imposed industry standard that required it to call its customer upon receiving an alarm signal.
I disagree that Monitronics’s actions in making the phone calls to Veasley and her sister (a backup emergency contact Veasley had provided to Monitronics) fell outside the scope of the contract. The services Veasley contracted for “consisted] of the receipt, analysis [,] and response (dispatch of proper authorities) [sic] to signals from the System installed under [the] Agreement.” It is undisputed that Monitronics made the phone calls as part of its response process prior to dispatching police to Veasley’s residence. Accordingly, I believe the trial court erred by ruling that the phone calls were voluntary undertakings and not a part of the service Veasley paid for under the contract. Likewise, I believe that the trial court’s pre-trial framing of the issues was erroneous.
Nevertheless, this was not fatal to the verdict and judgment. Generally, a breach of contract, with nothing more, does not give rise to a tort action because a “tort is the unlawful violation of a private legal right other than a mere breach of contract.”53 “To maintain an action in tort because of a breach of duty growing out of a contractual relation, the breach must be shown to have been a breach of [an *147independent] duty imposed by statute or a duty imposed by a recognized common law principle.”54 Thus, “a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him.”55
Here, because I believe Monitronics was not engaged in a voluntary undertaking, it did not owe her the duty of ordinary care associated with such acts.56 But it still had a duty to Veasley independent of the contract because it was performing a service for her that was necessary for her protection. As stated in Section 323 of the Restatement (Second) of Torts,
[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.57
Therefore, based on the nature of the services provided by Monitronics, it had a duty to exercise reasonable care to avoid increasing the risk of harm to Veasley and to avoid causing harm to Veasley resulting from her reliance on Monitronics’s services. Accordingly, the case was properly tried as a tort case, regardless of whether the conduct at issue arose out of the performance of the contract.
Furthermore, despite erroneously characterizing Monitronics’s phone calls as extra-contractual, the trial court nevertheless did not limit the actual trial proceedings to the purported extra-contractual conduct. The parties presented evidence outlining Monitronics’s entire course of conduct (despite the trial court’s prior delineation *148between the phone calls and other alarm services), and the jury was not limited in its consideration of the evidence. Also, the trial court instructed the jury as to the applicable duties and the general negligence standard of care, and the verdict form shows that the jury’s findings were not predicated on an erroneous legal theory. Both parties agree in their briefing in the cross-appeal, in light of the way the trial played out and the way the jury was instructed, it was ultimately irrelevant whether or not the duties arose from extra-contractual conduct.58 Therefore, the record before us does not require reversal.
In addition to the discussion below, I find the result in Division 3 overly harsh. Monitronics’s notices of apportionment were filed 103 days (and not 120 days) prior to trial only because of the trial date chosen by the court after Monitronics had already filed its notices. While not reversible error, this case illustrates an unnecessary trap for the unwary resulting from the current statutory scheme established by the legislature in OCGA § 51-12-33 (d) (1).
OCGA § 51-1-1.
Deacon v. Deacon, 122 Ga. App. 513 (177 SE2d 719) (1970).
(Emphasis supplied.) Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587) (1973).
See, e.g., Osowski v. Smith, 262 Ga. App. 538, 540 (1) (586 SE2d 71) (2003) (“a person may be held liable for the negligent performance of a voluntary undertaking”).
(Emphasis supplied.) Cf. Orkin Exterminating Co., 130 Ga.App. at 365 (“an independent harm may be found because of the relationship between the parties, or because of defendant’s calling or because of the nature of the harm”), citing E. & M. Construction Co. v. Bob, 115 Ga. App. 127 (153 SE2d 641) (1967) (noting a duty of care independent of a contract).
In Case No. A13A0091, Monitronics’s brief states that “it is significant that the court instructed the jury that Monitronics had a duty to exercise ordinary care without limiting that duty to extra-contractual conduct____[Bjecause of the phrasing of the jury charge, Ms. Veasley cannot show harm” from the trial court’s purported limitation of the issues at trial. Likewise, Veasley’s brief states that “ ‘because of the phrasing of the jury charge,’ it does not matter to the jury’s verdict whether Monitronics’s duty to exercise ordinary care arose from a contractual duty or an assumed extra-contractual duty.” I believe both parties are correct in this regard.