(concurring and dissenting):
I concur generally in the main opinion’s treatment of the breach of contract and breach of warranty claims. I dissent, however, from the main opinion’s decision to uphold the trial court’s summary dismissal of Thiok-ol’s negligence and strict' liability claims.
The main opinion argues that because the appellees’ responsibility in tort is, on the facts found by the trial court, “exactly coextensive with their contractual obligations,” the appellees cannot be liable in tort. In so stating, the main opinion misapplies the controlling case of DCR Inc. v. Peak Alarm Co., 663 P.2d 433 (Utah 1983).
In DCR, the parties entered into a contract that required the defendant to install and maintain a burglar' alarm in the plaintiffs clothing store. After the alarm was installed, a burglary occurred in the plaintiffs store resulting in an inventory loss of $55,000. The burglar* deactivated the plaintiffs alarm using a simple well-known deactivation technique. The defendant knew about the deactivation technique and also knew of an easy and inexpensive way to prevent the deactivation, but failed to warn the plaintiff about the risk. The plaintiff brought an action against the defendant in negligence and on the contract. The Utah Supreme Court addressed the question of whether the negligence of a party to a contract can give rise to both contract and tort claims.
This Court has defined negligence as a failure to exercise the degree of care which a reasonable person would have exercised under the same circumstances, whether by acting or by failing to act. In cases where the alleged negligence consists of a failure to act, the person injured by another’s inaction must demonstrate the existence of some special relationship between the parties creating a duty on the part of the latter to exercise such due care in behalf of the former.... Similarly, contractual relationships for the performance of services impose on each of the contracting parties a general duty of due care toward the other, apart from the specific obligations expressed in the contract itself. The care to be exercised in any particular case depends upon the circumstances of that case and on the foreseeable danger involved and must be determined as a question of fact.
A party ivho breaches [its] duty of care toward another may be found liable in tort, even where the relationship giving rise to such a duty originates in a contract between the parties.
Id. at 434-35 (emphasis added) (footnotes omitted).
The supreme court cited with approval Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980)1 and Flint & Walling Manufacturing v. Beckett, 167 Ind. 491, 79 N.E. 503 (1906).2 The supreme court also quoted an article by Pro*103fessor Carl S. Hawkins, to the following effect:
The “duty” concept limits defendants’ liability to claims arising out of particular relationships and risks. In professional negligence cases, a contract with the client most often creates the relationship from which the duty of care arises. However, the defendant’s tort liability is not based upon breach of contract, but rather upon violation of the legal duty independently imposed as a result of what the defendant undertook to do with relation to the plaintiffs interests.
DCR, 663 P.2d at 436-37 (quoting Carl S. Hawkins, Retaining Traditional Tort Liability in the Nonmedical Professions, 1981 B.Y.U.L.Rev. 33, 36).
The supreme court concluded that the defendant’s duty to warn the plaintiff of the vulnerability of the alarm system did not arise from any promise contained within the four corners of the contract. Instead,
the duty as it exists in this case is derived from defendant’s general duty of due care which accompanies its ongoing contractual relationship with plaintiff for service and maintenance of the alarm system. Thus, plaintiffs allegation of failure to warn provides the basis for a cause of action in tort which is entirely separate from any contract-based claims which plaintiff might present.
Id. at 437. Although the defendant was not liable in contract, the supreme court held that the defendant might be liable in tort for a breach of its duty to exercise due care towards the plaintiff.
Contrary to the main opinion’s position in this case, a determination that Thiokol’s claims do not give rise to breach of contract, does not, as a matter of law, preclude Thiok-ol’s claims of negligence based on duties arising as a result of the contractual relationships. The contractual relationships between Thiokol and its contractors and subcontractors gave rise to a duty of due care between the parties. Thiokol’s negligence claims go to this duty of due care and not to the contractual duties. The main opinion therefore errs in concluding that the failure of Thiokol’s contract claims necessarily defeats Thiokol’s negligence claims. Whether appel-lees have breached their duty of due care is inherently factual in nature and cannot be determined as a matter of law. See id. at 435.
Similarly, the failure of Thiokol’s contractual claims do not, as a matter of law, preclude its strict liability claims. Strict liability does not depend upon the existence of a contract between the parties. See, e.g., Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 156 (Utah 1979) (“Strict liability ... [does] not rest on a consensual foundation but, rather, on one created by law.”) (quoting Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 383-84, 575 P.2d 1162, 1165-66 (1978)); Restatement (Second) of Torts § 402A(2)(b) (1965). The supreme court in Hahn discussed the origin of strict liability and stated, in pertinent part:
[T]he concept of strict products liability was created and shaped judicially. In its evolution, the doctrinal encumbrances of contract and warranty, and the traditional elements of negligence, were stripped from the remedy, and a new tort emerged which extended liability for defective product design and manufacture beyond negligence but short of absolute liability.
Id. The supreme court adopted Section 402A of the Restatement of Torts, which provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
*104(b) the user or consumer has not bought the product from or entered into any contractual relationship with the seller.
Hahn, 601 P.2d at 156. (quoting Restatement (Second) of Torts § 402A (1965)). Because Thiokol’s strict liability claims are not precluded by its failure on its contract claims, and because any determination of strict liability is fact specific, I believe the main opinion errs by precluding Thiokol’s strict liability claims as a matter of law.
I would therefore reverse the trial court’s summary dismissal of Thiokol’s negligence and strict liability claims and remand this case to allow Thiokol an opportunity to try to prove those claims.
. In Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980), the California Supreme Court explained the difference between a tort action for breach of a duty arising as a result of a contractual relationship and a contract action for breach of an express duty contained in the contract itself:
[A] wrongful act committed in the course of a contractual relationship may afford both tort and contractual relief, and in such circumstances the existence of the contractual relationship will not bar the injured party from pursuing redress in tort.
DCR, 663 P.2d at 435 (quoting Tameny, 164 Cal.Rptr. at 843, 610 P.2d at 1334).
. In Flint & Walling Mfg, Co. v. Beckett, 167 Ind. 491, 79 N.E. 503 (1906), the Indiana Supreme Court similarly addressed this distinction:
If a defendant may be held liable for the neglect of a duty imposed on him, independently of any contract, by operation of law, a fortiori ought he to be liable where he has come under an obligation to use care as the result of an undertaking founded on a consideration.... In some cases this ground of liability may coexist with a liability on contract towards the same person, and arising (as regards the breach) out of the same facts. .. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words, under a contract, and may be liable under the contract. The two duties are distinct.
DCR, 663 P.2d at 435-36 (quoting Flint, 19 N.E. at 505-06).