Behrendt v. Gulf Underwriters Insurance

¶ 88. (concurring). I concur in the result reached by the majority opinion in regard to both claims made. I write only with regard to the negligence claim in order to point out the difficulty in assessing duty, and the scope of duty, under our negligence jurisprudence. Some of the difficulty is caused in part by our failing to be precise in our reasoning when a claim of negligence arises from an allegation of a failure to act, as distinguished from a claim asserting that the act in question was negligently performed. This difficulty is enhanced when the claim made could be characterized as…