dissenting.
The majority appears to be persuaded that the complaint alleges the City failed to correct or remove a dangerous, condi*17tion, as opposed to alleging affirmative acts of negligence. Reasoning that the plaintiff could not proceed against the State under the Tort Claims Act for failure of the Board of Transportation to remove a dangerous condition, the Court holds that the plaintiff could not proceed against the City which was under contract with the Board of Transportation to remove such a condition. I respectfully dissent from that view.
Prior to the Tort Claims Act, the doctrine of governmental immunity prevented suits against the State on public policy grounds. Prosser, Law of Torts § 131 (1971) ; Davis, Tort Liability of Governmental Units, 40 Minn. L. Rev. 751 (1956). The North Carolina Tort Claims Act, G.S. § 143-291, following the trend in other states partially abrogating the doctrine of governmental immunity, abolishes the doctrine in those claims against fhe State in which a State officer, employee, involuntary servant or agent has committed a negligent act while acting within the scope of his office, employment or agency. See Comment, Tort Claims Against the State, 29 N.C.L. Rev. 416 (1951). However, the doctrine is retained when a negligent omission has occurred. See Flynn v. State Highway Commission, 244 N.C. 617, 94 S.E. 2d 571 (1956) ; Byrd, Recent Developments in North Carolina Tort Law, 48 N.C.L. Rev. 791 (1970). The State is not liable in cases of negligent omissions because the doctrine of State immunity still applies to omissions to act even though it is a negligent omission. The majority now extends this immunity to an “employee” or “independent contractor” under contract with the State when sued for negligent omissions arising out of the performance of that contract.
While a contractor with the State should and does come under the umbrella of the State’s immunity when it has merely performed the contract, such contractor should be liable for its own negligence in performing the contract. Givens v. Sellars, 273 N.C. 44, 159 S.E. 2d 530 (1968) ; Highway Commission v. Reynolds Co., 272 N.C. 618, 159 S.E. 2d 198 (1968) ; Prosser, Law of Torts § 131 (1971). In measuring such negligence, the standard should be that of reasonable care by a contractor.
The majority correctly states the rule that the City is under a duty, to use due care to keep its own streets and sidewalks in reasonably safe condition for ordinary use. Mosseller v. Asheville, 267 N.C. 104, 147 S.E. 2d 558 (1966) ; Hunt v. High Point, 226 N.C. 74, 36 S.E. 2d 694 (1946) ; see also G.S. § 160A-296. The due care standard applies to all highway maintenance *18whether the highway is under State or local government control. It is well settled in this jurisdiction that negligence may consist of an act or omission. Flynn v. Highway Commission, supra; Note, Tort Claims Act — Distinction Between Nonfeasance and Misfeasance, 36 N.C.L. Rev. 352 (1958), and cases cited therein. Accordingly, the City would be negligent under certain circumstances for the failure to remove snow and ice from its streets and sidewalks. Browder v. Winston-Salem, 231 N.C. 400, 57 S.E. 2d 318 (1950) ; Love v. Asheville, 210 N.C. 476, 187 S.E. 562 (1936) ; Hartsell v. Asheville, 164 N.C. 193, 80 S.E. 226 (1913) ; Cresler v. Asheville, 134 N.C. 311, 46 S.E. 738 (1904) ; see Annotation, Duty of Towns and Townships as to Snow and Ice in Highways, 27 A.L.R. 1104 (1923) ; Ferrell, City Liability of North Carolina Cities and Towns for Personal Injuries and Property Damage Arising From the Construction, Maintenance, and Repair of Public Streets, 7 Wake Forest L. Rev. 143 (1971). Under this same standard the Board of Transportation would be negligent if it unreasonably failed to remove snow and ice from State streets and roads. However, no liability devolves upon the State and its Board of Transportation for such negligence because of immunity from liability for negligent omissions under the Tort Claims Act. The City has no such immunity in this situation — either under the common law, the statutes relied upon by the majority, or under the contract between the City and the Board of Transportation. If the City is to escape liability, its nonliability should be based upon a finding of no negligence under the circumstances, and not upon a legal theory that the City is immune from liability for negligent omissions.
The evidence on the affidavits establishes that the’City voluntarily undertook the contractual duty to maintain State roads within the City limits of Winston-Salem. The State and traveling public relied, and had a right to rely, upon the City’s promise to fulfill that obligation. The established rule followed by this Court is that an action in tort, founded upon a breach of contract, can be maintained by one not a party or privy to a contract when the act complained of is imminently dangerous to the lives and property of others. Jones v. Elevator Co., 231 N.C. 285, 56 S.E. 2d 684 (1949). Such an action is not based upon the breach of the contract, but on the alleged negligence committed in its breach, which negligence constitutes a breach of duty imposed by law. Jones v. Elevator Co., supra. The rule, was *19articulated by Justice Sharp, speaking for this Court in Toone v. Adams, 262 N.C. 403, 137 S.E. 2d 132 (1964), as follows:
“ . . . The parties to a contract impose upon themselves the obligation to perform it; the law imposes upon each of them the obligation to perform it with ordinary care and they may not substitute a contractual standard for .this obligation. A failure to perform a contractual obligation is never a tort unless such nonperformance is also the omission of a legal duty. . . . The contract merely furnishes the occasion, or creates the relationship which furnishes the occasion, for the tort....
* * * *
The law imposes upon every person who enters upon an active course of conduct the positive duty to use ordinary care to protect others from harm and a violation of that duty is negligence. It is immaterial whether the person acts in his own behalf or under contract with another. . . . ” (citations omitted.)
See also, A.L.I., Restatement (Second) of Contracts § 145, Comment b (Rev. Ed. Tentative Drafts 1973) ; 2 A.L.I., Restatement (Second) of Torts § 324A (1965) ; 2 A.L.I., Restatement (Second) of Agency § 354 (1958).
The legal duty imposed upon a highway contractor with the Board of Transportation (formerly the State Highway and Public Works Commission) was stated by this Court in Council v. Dickerson’s, Inc., 233 N.C. 472, 64 S.E. 2d 551 (1951), as follows:
“When the defendant undertook to perform the promised work under his contract with the State Highway and Public Works Commission, the positive legal duty devolved upon him to exercise ordinary care for the safety of the general public traveling over the road on which he was working. ...” (Citations omitted.) (Emphasis added.)
As previously stated, ordinary care would encompass a duty to exercise reasonable diligence in removing ice and snow from the streets and in correcting other dangerous conditions.
The. majority distinguishes Council v. Dickerson’s, Inc. on the ground that the contractor therein was engaged in the affirmative course of conduct of “paving a highway.” In my *20view, undertaking to maintain State streets within the city-limits is no less an “affirmative course of conduct” than “paving a highway.” Here, the City, pursuant to the contract with the Board of Transportation, had engaged in the maintenance of State roads in Winston-Salem prior to the day of decedent’s accident. On that day the City had an employee surveying the streets to determine whether snow and ice accumulation necessitated removal operations. It had work crews on duty at that time, and the crews actually engaged in snow and ice removal operations later that day. To say that this is nonfeasance is an unduly restrictive application of that doctrine. In Flynn v. Highway Commission, 244 N.C. 617, 94 S.E. 2d 571 (1956), this Court held that negligence may consist of either an act or omission. In that case plaintiff charged that the State Highway Commission failed to repair a break or hole in the road surface. If the failure to fill the hole had been mere nonfeasance, there would have been no negligence at all and it would have been unnecessary for the Court to consider whether liability ensued under the Tort Claims Act.
The concept of nonfeasance means the complete nonperformance of a promise, i.e., not doing the thing at all. Prosser, The Law of Torts § 92 (1971). In this case the promise'was to maintain State streets within the City limits. Repairing holes and removing ice, snow and debris were merely some of the obligations necessary to fulfill the promise.
The majority determines that the City had no duty or liability to the motoring public under the contract. This allows the City to contract to maintain State roads for a consideration, and then do nothing, collect the consideration, and incur no liability. The Legislature never intended to authorize such an arrangement.
The City contracted to “provide routine maintenance, upkeep and repair of the State Highway System streets within the Municipality.” The majority holds that members of the traveling public, who are injured by the breach of this contract, are mere incidental beneficiaries and cannot maintain an action for damages against the City based on the breach. This conclusion is based upon a finding that the only beneficiaries contemplated by the parties to the contract were the parties themselves since the sole purpose of the contract was to provide the most convenient and economical method for maintaining State roads within the City limits of Winston-Salem. I think the State main*21tains its public streets and highways for the benefit of public users. See 10 McQuillin, Municipal Corporations § 30.39 (3rd Ed. Rev. 1966). When the State enters a contract for maintenance of State roads, people who use the roads receive the benefit.
The majority, in effect, overrules a line of cases in this jurisdiction dealing with the right of a resident of a municipality to sue a water company under contract with the municipality to provide water when the resident has been injured by the company’s breach of that contract. The reasoning in this line of cases, which I think applies to the present situation, was stated by this Court in Gorrell v. Water Supply Co., 124 N.C. 328, 32 S.E. 720 (1899), as follows:
“It is true, the plaintiff is neither a party nor privy to the contract, but it is impossible to read the same without seeing that, in warp and woof, in thread and filling, the object is the comfort, ease and security from fire of the people, the citizens of Greensboro. This is alleged by the eleventh paragraph of the complaint, and is admitted by the demurrer. The benefit to the nominal contracting party, the city of Greensboro, as a corporation, is small in comparison, and, taken alone, would never have justified the grants, concessions, privileges, benefits and payments made to the water company. Upon the face of the contract the principal beneficiaries of the contract, in contemplation of both parties thereto, were the water company on the one hand and the individual citizens of Greensboro on the other. The citizens were to pay the taxes to fulfill the money consideration named, and furnishing the individual citizens with adequate supply of water and the protection of their property from fire was the largest duty assumed by the company. One not a party or privy to a contract, but who is a beneficiary thereof, is entitled to maintain an action for its breach. . . .
^ ‡ ^
. . . ‘The water company did not covenant to prevent occurrence of fires, nor that the quantity of water agreed to be furnished would be a certain and effectual protection against every fire, and consequently does not in any sense occupy the attitude of an insurer; but it did undertake to perform the plain and simple duty of keeping water up to *22a designated height in the standpipe, and if it failed or refused to comply with that undertaking, and such breach was the proximate cause of destruction of the plaintiff’s property, which involves issues of fact for determination by a jury, there exists no reason for its escape from answering in damages that would not equally avail in case of any other breach of contract.’ ”
This decision has been expressly sustained on at least two occasions and relied on as authority numerous times. See, e.g., Potter v. Water Company, 253 N.C. 112, 116 S.E. 2d 374 (1960) ; Powell v. Water Co., 171 N.C. 290, 88 S.E. 426 (1916) ; Morton v. Water Co., 168 N.C. 582, 84 S.E. 1019 (1915) ; Jones v. Water Co., 135 N.C. 553, 47 S.E. 615 (1906). While repeated applications of a bad rule of law do not transform it into a good rule of law, I feel that the Gorrell rule is the better reasoned one even though followed by a minority of jurisdictions. See Corbin, Liability of Water Companies for Losses by Fire, 19 Yale L. J. 425 (1910) ; Seavey, Reliance. Upon Gratuitous Promises or Other Conduct, 64 Harv. L. Rev. 913 (1951) ; Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv. L. Rev. 372, 48 Yale L. J. 390, 39 Col. L. Rev. 20 (1939) ; Sunderland, The Liability of Water Companies for Fire Losses, 3 Mich. L. Rev: 442 (1905) ; Note, Torts — Liability of Water Company to Individuals For Failure to Furnish Water, 26 Temple L. Q. 214 (1953) ; Prosser, Law of Torts, § 93 (1971).
The majority adopts the reasoning of the New York Court of Appeals in Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 (1928), and distinguishes the Gorrell line of cases on grounds that those cases involved a franchise arrangement with the city, whereby the water company carried on a public utility business within the city. The theory is that a franchise imposes greater duties and obligations than an “ordinary contract.”
The Moch Company case arose out of facts almost identical to those in Gorrell. The contract in that case could also be characterized as a franchise agreement. However, the majority adopts the reasoning of the New York Court as more appropriate for application to this case than the prior reasoning of this Court on the same issue. I disagree. I do not think a contract to supply water to a city imposes greater duties and obligations than a contract to maintain State roads within the same city.
It should be noted that the majority rule, followed by the New York Court, is based upon a fear of placing a catastrophic *23burden on a defendant in the event a large portion of a city is lost due to fire and water pressure failure. Prosser, Law of Torts § 93 (1971). This policy was pointed out by the New York Court in Moch Company when it noted that “the field of obligation would be expanded beyond reasonable limits” by the contrary rule. This fear is unwarranted in the present situation. Cities have long been liable without catastrophic results for negligent acts and omissions when maintaining their own streets, and for negligent acts in maintaining State streets. Likewise, the State has been liable for many years under the Tort Claims Act for its negligent acts in maintaining State roadways and has not incurred any catastrophic burdens.
Finally, it is argued, and apparently assumed by the majority, that G.S. 160A-297 (a) absolves the City of liability for negligent omissions committed while maintaining State streets and bridges. That statute provides that a City is not responsible for maintaining State highways and not liable for damages arising from any failure to do so. This simply means that the City is not liable for failing to do that which it had no responsibility to do in the first place. However, once the City contracts with the State under G.S. 136-66.1(3) and assumes the responsibility for maintaining State streets and bridges within its jurisdiction, it is then subject to the general principles of tort and contract law applicable to that responsibility.
The majority opinion correctly observes that the possible issues on this motion have been restricted by the parties and lower courts to the sole question of whether a City is liable for a negligent omission while maintaining State streets and highways. My opinion, based on the foregoing reasons, is that the City should be held liable for such an omission. Therefore, defendant’s motion for summary judgment should have been denied.
Denial of the motion for summary judgment would not relieve plaintiff of the burden of- showing that the City breached a legal duty, and that the alleged death and injury was caused by such breach. Plaintiff would still face the hazard of directed verdict at the close of his evidence if he failed to show negligence.
For these reasons I respectfully dissent.