Helsel v. Western Elevator Service, Inc.

WARREN, J.,

specially concurring.

I agree that the instructions were inadequate, but for reasons different from those articulated by the majority. This is a negligence claim, not a contract claim. Under tort law, we must look to the specifications of negligence, not the contract, to see if the court adequately presented plaintiffs legal theories. Plaintiff alleged, inter alia, that defendant had failed to maintain preventively and failed to repair. The trial court correctly instructed the jury on defendant’s obligation to *311maintain preventively. However, when it instructed on defendant’s…