Hawthorne v. Kober Construction Co

In Hawthorne v. Kober Construction Co., 196 Mont. 519, 640 P.2d 467 (Mont. 1982), the plaintiff had suffered economic losses due to a delay in the shipment of steel. The court acknowledged that "the action is one for negligence in the performance of a contractual duty." Hawthorne, 640 P.2d at 470. Concluding that such action could be maintained because of the foreseeability of harm, the court relied upon Prosser's textbook reasoning: By entering into a contract with A, the defendant may place himself in such a relation toward B that the law will impose upon him an obligation, sounding in tort and not in contract, to act in such a way that B will not be injured. The incidental fact of the existence of the contract with A does not negative the responsibility of the actor when he enters upon a course of affirmative conduct which may be expected to affect the interests of another person. (640 P.2d at 470.)