('concurring in part and dissenting in part). I concur with the majority that the trial court erred in denying defendant B. C. General Contractors, Inc.’s motion for a directed verdict because there is no evidence that BC retained any actual control over the subcontracted work. Plummer v Bechtel Constr Co, 440 Mich 646, 659-661 (Levin, J.), 672 (Boyle, J.); 489 NW2d 66 (1992); Johnson v Turner Constr Co, 198 Mich App 478, 480-481; 499 NW2d 27 (1993); Samodai v Chrysler Corp, 178 Mich App 252, 256; 443 NW2d 391 (1989).
I respectfully dissent from the majority’s decision to reverse the trial court’s ruling to grant a directed verdict in favor of plaintiff against Horizon Cablevision, Inc. I believe that the trial court properly found that Horizon had a nondelegable duty to provide all necessary traffic control devices, as required under the permit issued by the Department of Transportation, and that Horizon undeniably breached that duty in failing to provide any traffic control devices because there is no factual dispute regarding this issue. I would affirm the jury’s verdict with respect to Horizon.
*86Plaintiffs theory of liability against Horizon was that it had a nondelegable duty to furnish and maintain all necessary traffic control devices in accordance with the Michigan Manual of Uniform Traffic Control Devices, that Horizon did not meet any of the requirements of that duty, that such failure constituted negligence, and that this negligence was a proximate cause of the decedent’s death. Defendants moved for a directed verdict with regard to plaintiff’s claim that the permit issued to Horizon created non-delegable duties to comply with certain safety precautions. At trial, defendants argued that they were entitled to a directed verdict because the permit was issued after the accident occurred, that the Department of Transportation is responsible for the condition of the highway, and that plaintiff was not an intended third-party beneficiary of the contract (the permit issued to Horizon). Plaintiff argued that under the permit both Horizon and BC owed nondelegable duties. The trial court ruled that BC did not owe plaintiff a duty as a result of the permit, but that the permit imposed a nondelegable duty on Horizon for plaintiff’s benefit.
Specifically, the trial court stated from the bench:
Now, [Horizon] contracted with the State, actually it’s not a contract, it gave them a right. They didn’t pay the State anything. The States’s [sic] not giving them any money. There is no contract. In that sense of the word here, what they did is, they promised the State of Michigan that they would perform this function for the benefit of the people of this State in a safe fashion. Because it was expected when this contract was entered into, that the motoring public of this state would be placed in potential danger by the activities of Defendant, Horizon, because it is obvious that vehicles and people, unlike the case cited here, which I haven’t *87had the opportunity to read, putting some telephone lines, or putting some street lights up on the side of the street doesn’t involve interaction with the public. The public is not hopefully claiming those poles, while they are being installed, nor are they jumping underground holes where they are laying their cables.
But mechanics expect when you lay a wire along a highway, state highway with M in front of the name gives somebody some clue, anybody that’s had any education, it is appropriate that people would come in contact with activities like that by merely driving your motor vehicle.
So the people of this state are, in my opinion, beneficiaries, who in the State mdot Department would be driving in this area. I wonder what would mdot be, what interest would they have. No losses to mdot from their activity where we think cable would scrape the concrete and cause damage, displaced gravel cause the state a dollar to replace. I am not clear exactly what this permit and this right flowing to the State would be from this permit, if it isn’t for the benefit of the people who use the highway.
But in the state we have here, there was a duty taken on, and it says tight in the permit, you cannot delegate this duty interest to anybody else. I don’t know what the duty would be to the state as an individual. The duty is to the people. And that’s my opinion of it, and I think [Horizon] should stay on the case.
Following the trial court’s ruling, plaintiff’s counsel clarified that plaintiff’s theories against Horizon were based on the “[c]ommon law, nondelegable duty for safety at the job site because of the unreasonable danger and franchise under Section 428 of the Restatement, general common law.” (Emphasis added). Although the trial court did not specifically rule with regard to the viability of the theory under 2 Restatement Torts, 2d, § 428, p 420, I agree that there is a common-law duty on Horizon in this case. In this regard, I disagree with the majority’s characterization *88of the trial court’s ruling as a “third-party beneficiary,” ante at 80, theory and I disagree with the majority that the “only conceivable basis” for imposing a non-delegable duty on Horizon is discussed in § 428 of the Second Restatement of Torts, ante at 74.
The duty in this case is based on the common law. Our Supreme Court has stated:
Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another. . . .
Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it may be a general one owed by the defendant to the public, of which the plaintiff is a part. Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. But it must be kept in mind that the contract creates only the relation out of which arises the common-law duty to exercise ordinary care. Thus in legal contemplation the contract merely creates the state of things which furnishes the occasion of the tort. This being so, the existence of a contract is ordinarily a relevant factor, competent to be alleged and proved in a negligence action to the extent of showing the relationship of the parties and the nature and extent of the common-law *89duty on which the tort is based. [Clark v Dalman, 379 Mich 251, 260-261; 150 NW2d 755 (1967).]
The common-law duty applicable in this case was explained in Misiulis v Milbrand Maintenance Corp, 52 Mich App 494; 218 NW2d 68 (1974). This Court in Misiulis first noted the general rule that contractees (such as Horizon) are generally not vicariously liable for injuries to a third person sustained as a result of the negligence of an independent contractor. However, this Court noted an exclusion from this rule where the contractee is personally at fault, that is, where the contractee’s own negligence is a proximate cause of the injury sustained. Id., pp 498-499. This is the situation in the present case. Plaintiff’s theory is that Horizon was negligent in failing to furnish and maintain traffic control devices on the highway and that such failure was a proximate cause of the decedent’s death. In other words, this is not a situation in which the contractee (Horizon) is not negligent, but is nonetheless held to be vicariously liable for the negligence of the independent contractor. See, also, Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 710; 532 NW2d 186 (1995) (“Duty of care not only arises out of a contractual relationship, but it also arises by operation of law, a general duty owed by defendant to the public of which plaintiff is a part. . . . [E]ven though plaintiff was not in privity of contract, she was owed a duty of ordinary care by defendant.”)
Further, the concept of a nondelegable duty has clearly been recognized in this state. In Funk v General Motors Corp, 392 Mich 91, 101; 220 NW2d 641 (1974), our Supreme Court stated that a landowner is ordinarily not responsible for injuries caused by a *90carefully selected contractor to whom the landowner has delegated the task of building a structure. However, the landowner “is responsible if [the owner] does not truly delegate—if he retains ‘control’ of the work—or if, by rule of law or statute, the duty to guard against the risk is made ‘nondelegable.’ ” In this case, the permit makes the duty to provide traffic safety devices nondelegable by Horizon.
Accordingly, in the present case, I would hold that Horizon had a common-law duty to use due care in its project and that the specific duty was set forth in the permit, that being the duty to furnish and maintain traffic control devices on the highway. This is really the duty utilized by plaintiff and the trial court. Because the trial court specifically ruled that there was no contract in this case, I do not think it is fair to characterize the trial court’s ruling as a “third-party beneficiary” duty. Third-party beneficiary issues arise in contract law; it must be determined that an individual is an intended third-party beneficiary of a contract to sue on the contract to which the individual is not a party. Rhodes v United Jewish Charities of Detroit, 184 Mich App 740, 744; 459 NW2d 44 (1990). In this regard, Horizon’s argument that the trial court incorrectly found that plaintiff is a third-party beneficiary because the permit did not create any third-party rights or other contractual rights is incorrect as a factual matter because the trial court ruled that the permit was not a contract.
As the majority notes, Horizon was required by statute to obtain the consent of the state highway commissioner before beginning the cable construction work over M-106. MCL 247.184; MSA 9.264. That “consent” was the permit issued by the Department of *91Transportation. One of the conditions of the permit was that the permittee (Horizon) agrees to “[p]rovide and maintain all necessary precautions to prevent injury or damage to persons and property from operations covered by this permit.” Contrary to Horizon’s argument, the decedent clearly falls in this class of persons, as correctly ruled by the trial court. The precautions are intended to include everyone exposed to the operations covered by the permit, to which the decedent was exposed.
Additionally, Horizon’s argument that the Department of Transportation could not purport to require Horizon to take safety precautions to maintain M-106 in a condition reasonably safe and convenient for public travel because those are statutory duties placed on the department is misplaced. Under MCL 691.1402; MSA 3.996(102), the Department of Transportation is responsible for maintaining the highway in reasonable repair so that it is reasonably safe and convenient for public travel. The statute provides that this duty extends only to the improved portion of the highway designed for vehicular travel and does not include any other installation outside the improved portion of the highway designed for vehicular travel. This is not a case involving road work, nor is it a case involving the repair or maintenance of the highway, nor is it a case involving any defect with the highway. The statute is simply inapplicable, and Horizon is incorrect in arguing that the Department of Transportation could not delegate its statutory liability. The Department of Transportation would not be liable in this case had plaintiff attempted to name it as a party defendant.
*92Horizon’s argument that the permit was not in effect at the time of the cable work is similarly merit-less. Horizon applied for the permit on the day of the accident, October 28, 1994, and the permit was issued on November 9, 1994. The permit provides that the “[cjommencement of work set forth in the permit application constitutes acceptance of the permit as issued.” Clearly, Horizon applied for the permit and commenced the work. Horizon cannot escape liability merely because of the time delay.
Thus, I would find that Horizon had a common-law duty to plaintiff, that the scope of that duty was set forth in the permit, that the permit specifically provided that the duty was nondelegable, and that it is undisputed that Horizon did not comply with the requirement that it install and maintain traffic devices. The trial court’s decision to grant a directed verdict in favor of plaintiff with respect to the breach of duty is not a finding of negligence per se. In this case, the evidence was undisputed that Horizon did not furnish and maintain any traffic control devices. Thus, there is no factual question with regard to which reasonable minds could differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). Accordingly, the trial court did not err in granting a directed verdict in favor of plaintiff with respect to Horizon’s duty and the breach of that duty.
Although not addressed by the majority because of its resolution of the issue concerning Horizon’s duty, I will address the remaining issues raised by Horizon. I do not find those issues to require reversal. First, Horizon’s contention that plaintiff’s recovery would be limited to medical expenses should liability be imposed is meritless. Plaintiff’s damages would be so *93limited only in the event that his claim was based solely on contractual damages. Here, there is no contract and plaintiffs claim is premised on negligence. Therefore, plaintiffs damages are not limited to medical expenses only.
Next, the trial court did not err in instructing the jury that defendants, who were not the decedent’s employers, had a duty to comply with safety regulations under the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq.; MSA 17.50(1) et seq. Our Supreme Court has held that violations of administrative rules and regulations are evidence of negligence. Beals v Walker, 416 Mich 469, 481; 331 NW2d 700 (1982). Further, safety regulations in the workplace apply to employees of independent contractors. Id.; Hardaway v Consolidated Paper Co, 366 Mich 190, 197; 114 NW2d 236 (1962). On such Supreme Court authority, I would find no error in the trial court’s instruction. Moreover, even if such an instruction was error, it was clearly harmless as it relates to Horizon because the only theory of liability against Horizon was the common-law duty to act with reasonable care as set forth in the permit (the specific duty to furnish and maintain traffic control devices). Because there was no theory premised on violation of the MIOSHA regulations regarding Horizon, there can be no error in the trial court’s instruction in this regard. Indeed, the jury was instructed that it was the duty of Horizon to comply with the conditions of the permit and that it was the duty of Horizon to provide and maintain all necessary precautions to prevent damages to persons from operations covered by the permit. The trial court further instructed the jury that it was the duty of Horizon to furnish, install, and *94maintain all necessary traffic control devices and that Horizon did not satisfy these duties. The jury had only to determine whether Horizon’s negligence was a proximate cause of plaintiff’s damages and what those damages were. Thus, the MIOSHA regulations were not relevant to the claim against Horizon and any instructional error was harmless.
Last, defendants argue that the trial court erred in failing to hold an evidentiary hearing with respect to the attorney fees awarded to plaintiff under MCR 2.403(0). Defendants are clearly wrong in asserting that there was no evidentiary hearing; hearings were held on January 29, 1997, and February 26, 1997. Further, the trial court did not arbitrarily select $40,000 as a reasonable attorney fee as defendants claim. At the January 29, 1997, hearing, the trial court questioned plaintiff’s counsel at length regarding the hourly rate and time spent on the case. The trial court found that the amount of attorney fees requested ($61,627) was high and, on the basis of the argument presented by defense counsel, the trial court reduced plaintiff’s counsel’s hourly rate from $212 to $175, which the trial court found to be consistent with the rate in Ingham County. The trial court also noted that plaintiff’s counsel handled the case expeditiously and had “obviously put a lot of time in” the case. The trial court concluded that plaintiff should be awarded $40,000 in fees and costs. At the February 26, 1997, hearing, the trial court went through the factors set forth in Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982), and again ruled that $40,000 in attorney fees and costs was a reasonable amount. The trial court’s ruling that plaintiff was entitled to costs and the amount awarded as costs and attorney fees can*95not be said to constitute an abuse of discretion under these circumstances. Joerger v Gordon Food Service, Inc, 224 Mich App 167, 177-178; 568 NW2d 365 (1997).
Accordingly, I agree to reverse the verdict with regard to BC, but I would affirm the verdict against Horizon.