In Sommer v. Federal Signal Corp., 79 NY2d 540, 551, 593 N.E.2d 1365, 583 N.Y.S.2d 957 (1992), the plaintiff, a building owner, contracted with the defendant, a fire alarm company, to inform the New York City Fire Department when fire alarms sounded in the building.
Because of a misunderstanding between the building engineer and one of the defendant's dispatchers with regard to the reactivation of the fire alarm system, the defendant did not inform the fire department when the alarm went off due to a fire in the building one evening.
The plaintiff filed a complaint for breach of contract as well as for negligence arising out of the same nucleus of fact.
The Court of Appeals allowed both claims noting that:
"A legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship. Professionals, common carriers and bailees, for example, may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties. In these instances, it is policy, not the parties' contract, that gives rise to a duty of due care" (Sommer v. Federal Signal Corp., 79 NY2d at 551-552.)
The court noted that "the nature of the injury, the manner in which the injury occurred and the resulting harm" are all relevant in assessing whether a claim for both breach of contract and tort may exist. Id.