9.    Tort liability of the parties to a contract arises from the breach of some positive legal duty imposed by law because of the relationship of the parties, rather than from a mere omission to perform a contract obligation. An action in tort will not arise for breach of contract unless the action in tort would arise independent of the existence of the contract.
        

    10.    A tort, although growing out of a contract, must nevertheless possess all of the essential elements of tort.
       

     11.    “Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

        Airco began installing the heat pump system in the Lockhart home on November 6, 1995. According to Mrs. Lockhart, her husband's health seriously declined during the installation which occurred through November 11, 1995. Mrs. Lockhart contends that Mr. Lockhart's declining health was caused by Airco's failure to take appropriate precautions to keep the temperature in the house from fluctuating between hot and cold. In particular, Mrs. Lockhart claims that the workmen permitted doors and windows to remain open; failed to screen the rooms thereby allowing dust from the installation of duct work to circulate throughout the house, and supplied an incorrect electrical appliance causing the electric power to be shut off for the better part of a day.   (See footnote 2)  Mrs. Lockhart states that the workmen's actions caused Mr. Lockhart to suffer severe anxiety and stress.

        On November 17, 1995, Mr. Lockhart was transported by ambulance to a hospital where he was diagnosed with pneumonia in the right lung. This pneumonia was resolved by November 20, 1995. However, Mr. Lockhart contracted pneumonia in his left lung during his hospital stay. He was also diagnosed with lung cancer. Mr. Lockhart died on December 1, 1995, as a result of respiratory failure. His death certificate states that he was suffering from pneumonia, chronic obstructive pulmonary disease, and lung cancer.

        Mrs. Lockhart, as the administratrix of her husband's estate, filed this wrongful death action against Airco on November 5, 1997. Following discovery, Airco filed a motion for summary judgment contending, inter alia, that it owed no legal duty of care with regard to the health of Mr. Lockhart. The circuit court held a hearing on February 26, 1999, and entered summary judgment in favor of Airco on December 29, 2000. This appeal followed.

        As discussed herein, the circuit court granted summary judgment because it found that Airco owed no duty of care with respect to Mr. Lockhart's health. This Court has recognized that “[t]he determination of whether a defendant in a particular case owes a duty to the plaintiff is not a factual question for the jury; rather the determination of whether a plaintiff is owed a duty of care by a defendant must be rendered by the court as a matter of law.” Syllabus Point 5, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000). We have also stated that “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we now consider the parties' arguments.

         “'In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken.' Syl. Pt. 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981).” Syllabus Point 4, Jack v. Fritts, 193 W.Va. 494, 457 S.E.2d 431 (1995). In Syllabus Point 2 of Robertson v. Lemasters, 171 W.Va. 607, 301 S.E.2d 563 (1983), the seminal case in West Virginia regarding the concept of duty in tort law, this Court recognized that “[o]ne who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm.” This Court further explained that, “'“[Duty]” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk.'” Id., 171 W.Va. at 611, 301 S.E.2d 567 (quoting W. Prosser, The Law of Torts § 53 (4th ed. 1971)).

        In Syllabus Point 3 of Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988), this Court held that:
The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?

    Although foreseeability of risk is a primary consideration in determining the scope of a duty, this Court has recognized that “the existence of duty also involves policy considerations underlying the core issue of the scope of the legal system's protections.” Robertson, 171 W.Va. at 612, 301 S.E.2d at 568 (citations omitted). These considerations include the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. Id.

        Upon consideration of the facts and circumstances of this case, we do not believe that Airco could have reasonably foreseen that exposing Mr. Lockhart to cold air while installing a heating system in his home was going to cause him to contract pneumonia and die.   (See footnote 3)  Even assuming that Airco was completely aware of Mr. Lockhart's health problems, we do not believe that Airco or any other ordinary contractor in its position could have anticipated that Mr. Lockhart would die if he were exposed to cold air while the heating system was being installed. Moreover, when the existence of such a duty is contemplated in terms of the policy considerations set forth above, it is apparent that an onerous burden would be placed upon all contractors, whether they are persons who install heating systems or those who perform general carpentry or construction work, if they could be held tortiously liable for the existing health problems of their customers even though they performed their work in a reasonable manner.

        Mrs. Lockhart seems to suggest that by agreeing to “take necessary precautions” to protect her husband's health, Airco assumed some sort of special duty toward her husband. In other words, she argues that Airco had a duty of care with respect to her husband's health because her contractual agreement with Airco for the installation of the heating system included Airco's assurance that it would not allow the temperature in the house to fluctuate. However, even if Airco contractually agreed to take precautions to avoid causing any harm to Mr. Lockhart's health, Mrs. Lockhart cannot maintain an action in tort for an alleged breach of a contractual duty.   (See footnote 4)  This Court has held that “[i]n the matters of negligence, liability attaches to a wrongdoer, not because of a breach of a contractual relationship, but because of a breach of duty which results in an injury to others.” Syllabus Point 2, Sewell, supra. Stated another way,

        Tort liability of the parties to a contract arises from the breach of some positive legal duty imposed by law because of the relationship of the parties, rather than from a mere omission to perform a contract obligation. An action in tort will not arise for breach of contract unless the action in tort would arise independent of the existence of the contract. 86 C.J.S. Torts § 4 (1997). Thus, “[a] tort, although growing out of a contract, must nevertheless possess all of the essential elements of tort.” Id.

        In sum, Mrs. Lockhart has failed to establish the existence of duty on the part of Airco with respect to the decedent's health. In Syllabus Point 2 of Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), this Court held that:
       

     Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

Thus, the circuit court did not err in granting summary judgment in favor of Airco.