dissenting. This action against the City of Shawnee arose prior to the enactment of the Kansas Tort Claims Act. See K.S.A. 1981 Supp. 75-6101 et seq. Therefore, the common law duty of the City to keep streets in a reasonably safe condition was the applicable law imposed. Supporting citations on this duty of the City appear in the opinion for the court and I join in holding that a submissible case was made against the City of Shawnee.
However, I find myself unable to agree with the majority that a submissible case was made against the Kansas City Power & Light Company (KCPL). KCPL owed no duty to the plaintiff which it breached and no breach of such an alleged duty could have been the proximate cause of plaintiff’s injuries and damage. It is basic tort law that before a defendant can be held liable to the plaintiff there must be a duty owed. KCPL’s only obligation regarding signalization of the K-10 and Quivira intersection was contractual and was to the City. The tort claim of plaintiff against the City would not extend to KCPL. There was no privity between plaintiff and KCPL; there was no misfeasance by KCPL; and KCPL did not breach its contractual obligation with the City.
It is true that the City advised KCPL that it wanted the new *36signalization engineered and installed when the Quivira four lane road was opened, but no exact date could be given for that happening and no agreement was executed imposing such a contractual deadline on KCPL.
KCPL contracted to prepare the signalization, and thus became bound by that contract to the City for any breach or failure to perform. No obligation was created or imposed for the benefit of the plaintiff by KCPL’s failure to perform. At the time of this unfortunate two-vehicle accident the roadway and signalization were free of defects which could have caused the accident. The red traffic lights were properly activated and were readily visible to anyone using Quivira Road. The green traffic lights were properly activated and were readily visible to anyone traveling on K-10 Highway. The accident was caused by the actions of Larry Doyle who made a left turn onto Quivira Road in the face of oncoming traffic.
We must assume from the jury verdict this was an unreasonably dangerous intersection. However, it was the responsibility of the City of Shawnee, and the City’s duty to the traveling public with regard to this condition cannot be delegated to another. K.S.A. 8-2005 charges municipalities with the responsibility for placing and maintaining traffic control devices to regulate, warn, or guide traffic. In exercising these functions the City cannot, as a matter of law, delegate that responsibility and accompanying liability to KCPL. Landau v. City of Leawood, 214 Kan. 104, 519 P.2d 676 (1974); Coffman v. Fisher, 203 Kan. 618, 624, 455 P.2d 490 (1969).
When a contractor undertakes performance of a contract and performs in such a manner as to create an inherent danger resulting in injury, liability may be established. Talley v. Skelly Oil Co., 199 Kan. 767, 777, 433 P.2d 425 (1967). However, no evidence was introduced to indicate any misfeasance by KCPL with regard to the intersection and its signalization. The intersection and signalization had not been changed by KCPL for no work on the signals was undertaken until after the accident. It is generally held that a contractor owes no duty to the general public for nonfeasance, i.e., failure to do anything.
As stated in 1 C.J.S., Actions § 49 c, p. 1112:
“The mere negligent breach or nonperformance of a contract will not sustain an action sounding in tort, in the absence of a liability imposed by law independent *37of that arising out of the contract- itself, only an action ex contractu being available. . . . However, active negligence or misfeasance is necessary to support an action in tort based on a breach of contract; mere nonfeasance, even if it amounts to a willful neglect to perform the contract, is not sufficient.” Emphasis supplied.
The distinction is hardly a new one. The United States Supreme Court in the case of Atlantic and Pacific Railroad v. Laird, 164 U.S. 393, 399, 41 L.Ed. 485, 17 S.Ct. 120 (1896), in quoting from Kelly v. Metropolitan Railway Company, 1 Q.B. 944 (1895), stated:
“The distinction is this — if the cause of complaint be for an act of omission or nonfeasance which, without proof of a contract to do what has been left undone, would not give rise to any cause of action (because no duty apart from contract to do what is complained of exists) then the action is founded upon contract and not upon tort.”
Active negligence or misfeasance is necessary to support an action in tort based on breach of contract; mere nonfeasance, even if it amounts to a willful neglect to perform the contract, is not sufficient. Here, there has been no allegation that the contract itself was breached at all.
What is the application of this limitation where, as here, it is a third party who is damaged? Prosser provides the answer:
“The refusal to find any liability to third persons has been most definite where the defendant’s misconduct is found to have consisted merely of a failure to perform the contract at all. Such ‘nonfeasance’ ordinarily leads to no tort liability even to the promisee, whose remedy must be on the contract itself; and it follows that a third person, no party to the contract, has no better claim in tort. Thus it is quite generally agreed that if the defendant contracts to accept employment with A, in work which will affect the safety of B, and then entirely fails to appear for work and never enters upon the employment, he may be liable to A for breach of his contract, but he will have no liability in contract or in tort to B.” Prosser, Law of Torts (4th ed. 1971), § 93, p. 623.
Plaintiff urged the application of Restatement (Second) of Torts § 324A (1965):
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
*38However, attention should be directed to the “Caveat” included by the American Law Institute immediately following the quoted Restatement section:
“Caveat:
“The Institute expresses no opinion as to whether:
“(1) the making of a contract or a gratuitous promise, without in any way entering upon performance, is a sufficient undertaking to result in liability under the rule stated in this Section.” Emphasis supplied.
Where no left-turn signal existed, and where there is no complaint about the effective operation of existing signals or other work actually performed by the KCPL, there can be no liability on the part of the contractor, even if the contract had been breached.
Whether plaintiff proceeded under contract or negligence theories, KCPL owed no obligation to signalize the intersection independent of a contract with the City. Any theory of negligence must have been based upon a duty arising out of contract, and no liability under contract or negligence attaches where there is no breach of the contract in the first place. It is elemental that negligence does not operate in a vacuum. In order for negligence to be actionable, there must exist a duty owed to the plaintiff. George v. Breising, 206 Kan. 221, 225, 477 P.2d 983 (1970); Dye v. Rule, 138 Kan. 808, Syl. ¶ 2, 28 P.2d 758 (1934).
Here, the only possible nexus between the plaintiff and KCPL was the contract wherein KCPL agreed to install left-turn signals at the intersection pursuant to the specifications of the City as approved by the Kansas Department of Transportation. There was no allegation that the contract was breached. Evidence adduced at trial was that KCPL had until August 24, 1976 (more than six weeks after plaintiff’s accident) to complete the left-turn signal installation.
If it is the delay in installation that is considered actionable negligence, then others who contributed to tins delay must be considered guilty of actionable negligence. After the signalization plan had been finalized and approved by both the City and the KDOT, approval by KDOT being required by K.S.A. 8-2005(h), the first controller system ordered and received by KCPL was defective when received from the manufacturer. The delay in signalization due to this defective controller system was not *39chargeable to KCPL. Mere delay or nonfeasance should not subject KCPL to tort liability in this case.
Accordingly, the trial court erred when it failed to sustain KCPL's motions for a directed verdict and for judgment notwithstanding the verdict, and I would reverse the judgment.