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The Elusive Element of Duty: Two Principles in Search of an Exception


I find it useful to analyze tort duties in terms of two basic principles, each liberally qualified with exceptions. The first principle is that courts generally refuse to impose liability for doing nothing. If Adler, a couch potato, spends all of his time on the sofa watching TV, he is in an excellent position to avoid tort liability. Indeed, as a Torts professor, I would advise you to do just that. People get into tort suits in the weirdest of ways, but they have little to fear from being inert.

This long-held view of the common law, that there is no liability for the failure to act, is illustrated by the hypothetical of the callous bystander who watches a blind man walk into a busy street and fails to call out a warning. Our moral sense is repulsed by the illustration, yet in most states the bystander still has no legal duty to act to protect another, and therefore is not liable for failing to do so. Similarly, a sunbather who watches a child going under the waves has no duty to dive in the water, throw her a life ring, or even notify a nearby lifeguard:

The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.

Restatement (Second) of Torts §314.[1]According to the Second Restatement,

The origin of the rule lay in the early common law distinction between action and inaction, or “misfeasance” and “non-feasance.” In the early law one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence, liability for nonfeasance was slow to receive any recognition in the law.

Restatement (Second) of Torts §314 cmt. c.

Although torts scholars usually cite this no-duty-to-act principle with embarrassment, there are some substantial policy arguments to support it. The defendant whose act (misfeasance) endangers the plaintiff has “created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has at least made [the plaintiff’s] situation no worse, and has merely failed to benefit him by interfering in his affairs.” Prosser & Keeton at 373. Other defenders of the principle emphasize the infringement on individual liberty posed by coercing services from unwilling bystanders[2],  and the difficulty of defining the duty if it is to be imposed. For example, how great an effort would the defendant have to make? Would a bystander have to dive in after a drowning child if he could not swim? Which bystanders would have the duty-a whole beachful? Would bystanders be required to subordinate important interests of their own to effectuate rescue (for example, postpone visiting a seriously ill relative to assist at an accident scene)?

[1] [ft] The Third Restatement (§37) takes essentially the same position.
[2] [ft] Consider the case posed by Professor Epstein in his defense of the rule:
X as a representative of a private charity asks you for $10 in order to save the life of some starving child in a country ravaged by war. There are other donors available but the number of needy children exceeds that number. The money means “nothing” to you. Are you under an obligation to give the $10?
R. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151, 198-199 (1973).

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