Duty and affirmative duties to act

Nonfeasance and the Baseline Rule: When Silence Is Not Negligence

The general rule is that a person has no duty to take affirmative action to protect another from harm when the person did not create the risk. This is the no-duty rule for nonfeasance: merely failing to rescue, warn, assist, or control someone ordinarily does not create negligence liability.

The first question is therefore not whether the defendant could have helped. It is whether the defendant’s alleged wrong is an omission or an act. Misfeasance is affirmative conduct that creates or increases a risk-for example, pushing someone into a pond or leaving a dangerous obstruction in a walkway. Nonfeasance is failing to intervene in a danger that already exists-for example, watching a stranger drown without causing the drowning.

That distinction is decisive. A bystander who encounters a swimmer in danger generally has no duty to attempt a rescue, even if the bystander could easily help and even if the failure to help seems morally blameworthy. Foreseeability of the harm, standing alone, does not create an affirmative duty. Nor does physical ability, knowledge of the danger, or the fact that calling for help would be easy.

The no-duty rule is not a rule that omissions can never be negligent. It is a screening rule: first identify a recognized source of affirmative duty. If no source applies, the negligence claim fails at duty, and there is no need to analyze whether the omission was unreasonable. If a source applies, the defendant must take reasonable protective steps within the scope of that duty; the existence of duty does not make the defendant an insurer of the plaintiff’s safety.

The three principal sources are prior conduct that created or exacerbated the risk, a special relationship, and a voluntary undertaking. This chapter is closed-book: you must be able to state those triggers and their consequences from memory.

A useful near-miss is a defendant who begins with no duty but then acts. A passerby may have no duty to rescue a fallen cyclist. But if the passerby lifts the cyclist, moves the cyclist into traffic, and then abandons the effort, the passerby’s own conduct may have created or increased the danger. The analysis has moved from pure nonfeasance toward an affirmative-duty exception.

Three Doors Around No Duty: The Fact That Activates Each Exception

The exceptions are not interchangeable. Ask what fact supplied the duty, because the scope and limits of the resulting obligation depend on that source.

Prior conduct exacerbating risk. An actor who creates a risk of physical harm through prior conduct has a duty to use reasonable care to prevent or minimize the resulting harm. The conduct need not have been negligent at the moment it occurred. The critical fact is that the defendant’s conduct placed the plaintiff in danger or made the danger worse.

For example, a driver who accidentally knocks a pedestrian into a ditch must take reasonable steps to address the danger created by the collision. The driver cannot invoke the no-duty rule merely because the driver did not intend the accident. By contrast, a driver who sees an unrelated accident but played no part in creating it ordinarily has no duty under the prior-risk exception.

The duty is limited to risks connected to the defendant’s conduct. It does not transform the defendant into a general rescuer. If the defendant creates one danger but then encounters a separate, unrelated emergency, the prior-risk rule does not automatically cover the second emergency.

Special relationships. A special relationship can create an affirmative duty to protect another from foreseeable physical harm. Recognized examples include common carrier and passenger, innkeeper and guest, possessor of land and invitee, employer and employee, school and student, landlord and tenant, and custodian and person in custody. The exact relationship matters because it must involve a legally recognized basis for dependence, protection, supervision, or custody-not merely friendliness, proximity, or knowledge.

The relationship may support a duty to protect the plaintiff from risks created by other people. Thus, a school’s relationship with a student can require reasonable protective measures against a foreseeable assault, and an innkeeper’s relationship with a guest can require reasonable protection against foreseeable criminal conduct. The duty is not absolute: the defendant need not prevent every injury or anticipate every remote possibility.

A special relationship can also matter because it gives the defendant authority over the person who creates the danger. That is the separate duty-to-control analysis discussed below. Keep the two relationships distinct: a relationship between defendant and plaintiff supports a duty to protect plaintiff; a relationship between defendant and the dangerous third party may support a duty to control that third party.

Voluntary undertakings. A person who voluntarily undertakes protective services must use reasonable care in performing the undertaking. Payment is unnecessary. A gratuitous undertaking can create the same duty as a paid service.

The undertaking rule has two important limits. The defendant is liable only within the undertaking’s scope, and liability generally requires one of two consequences:

1. The defendant’s failure to use reasonable care increases the risk of harm beyond the risk that existed before the undertaking; or

2. The plaintiff or another person relies on the undertaking, and the undertaking fails to provide the expected protection.

A person who begins a rescue cannot perform it carelessly and leave the victim in a worse position. Similarly, a person who announces that a dangerous area is being monitored may induce people to stop taking their own precautions. The undertaking then must be carried out with reasonable care.

A near miss is a bare intention to help. Thinking, “Someone should call an ambulance,” does not constitute an undertaking. A promise communicated to the plaintiff may matter if the plaintiff relies on it, but an uncommunicated intention does not. Another near miss is a service unrelated to protection from physical harm: undertaking to deliver a package does not automatically create a duty to supervise a stranger’s safety.

The undertaking may coexist with another exception. A school that promises to supervise students may owe a duty both because of its school-student relationship and because it voluntarily undertook supervision. Identify the strongest source and analyze the scope that source supplies.

Controlling Another Person: Authority, Foreseeability, and Opportunity

The general rule is that a person has no duty to control the conduct of a third party. A defendant is not ordinarily liable merely because the defendant knew that a stranger was dangerous, happened to be present, or could have attempted to intervene.

The recognized duty to control third parties arises when the defendant has a special relationship that supplies responsibility and the practical ability to control the actor, or when the defendant’s relationship with the plaintiff creates a duty to protect the plaintiff from foreseeable conduct by others. The analysis is defendant-specific: ask what relationship gave this defendant authority, custody, supervision, or protective responsibility.

A duty to control ordinarily requires these facts:

1. A relevant relationship. The defendant has a special relationship with the dangerous person, such as employer-employee, parent-child, school-student, or custodian-person in custody; or the defendant has a special relationship with the plaintiff that creates a duty of protection.

2. A foreseeable need for control or protection. The defendant knows or should know facts making the third party’s harmful conduct sufficiently foreseeable. A vague possibility of misconduct is not enough.

3. Ability and opportunity to control. The defendant has authority or practical power to supervise, restrain, remove, discipline, or otherwise manage the third party. Mere physical presence or a theoretical ability to make a phone call is not, by itself, the required relationship-based control.

When those conditions exist, the consequence is a duty to use reasonable care-not a strict duty to prevent every injury. Reasonable measures might include supervision, removal from the situation, suspension, or another response suited to the known risk. Whether the chosen response was reasonable is a breach question; whether the relationship and facts create any affirmative obligation is the duty question.

The near-miss distinctions are especially important:

• Prior-risk duty versus control duty: If the defendant’s own conduct created the danger, use the prior-risk rule. If an independent third party created the danger and the defendant had relationship-based authority over that person, analyze control.

• Control versus vicarious liability: A duty to control concerns the defendant’s own failure to take protective action. It is not automatic responsibility for another person’s conduct; liability for acts of others belongs to the sibling chapter on liability for the acts of others.

• Special relationship with plaintiff versus special relationship with actor: A hospital-patient or school-student relationship may require protection of the plaintiff. An employer-employee or parent-child relationship may supply authority to control the actor. The relevant relationship must fit the duty asserted.

• Control versus undertaking: A defendant with no special relationship may still assume responsibility by voluntarily undertaking protective supervision. The trigger then is the undertaking, plus increased risk or reliance-not the mere fact that the defendant could have intervened.

Loading diagram…

At a manufacturing plant, supervisor Lee learns that employee R has twice threatened a delivery driver who must enter the loading bay. Lee has authority to remove R from the bay but leaves R there without supervision, and R attacks the driver. Lee did not create the danger and did not promise or begin protective services.

Three Pressure Tests: The Rule That Decides Each Fact Pattern

High-Yield Points - ⚡ Biggest Takeaways

Start with nonfeasance: no affirmative duty exists unless a recognized exception supplies it. Prior conduct, special relationships, and voluntary undertakings are distinct sources of affirmative duty. Control requires relationship-based authority, a foreseeable need, and a reasonable opportunity to act.