Misfeasance

A term used in Tort Law to describe an act that is legal but performed improperly.

Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff.

For example, assume that a janitor is cleaning a restroom in a restaurant. If he leaves the floor wet, he or his employer could be liable for any injuries resulting from the wet floor. This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet.

In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that describes a failure to act that results in harm to another party. Misfeasance, by contrast, describes some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructive. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed.

To illustrate, consider the example of the wet bathroom floor. One court could call a resulting injury the product of misfeasance by focusing on the wetness of the floor. The washing of the floor was legal, but the act of leaving the floor wet was improper. Another court could call a resulting injury the product of nonfeasance by focusing on the janitor's failure to post a warning sign.

Further readings

Kionka, Edward J. 1988. Torts. St. Paul, Minn.: West.

Cross-references

Malfeasance.

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misfeasance n. management of a business, public office or other responsibility in which there are errors and an unfortunate result through mistake or carelessness, but without evil intent and/or violation of law. Misfeasance is distinguished from "malfeasance" which is conduct in violation of the law. (See: malfeasance)

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MISFEASANCE, torts, contracts. The performance of an act which might lawfully be done, in an improper manner, by which another person receives an injury. It differs from malfeasance, (q.v.) or, nonfeasance (q.v.) Vide, generally, 2 Vin. Ab. 35; 2 Kent, Com. 443; Doct. Pl. 62; Story, Bail. Sec. 9.
     2. It seems to be settled that there is a distinction between misfeasance and nonfeasance in the case of mandates. In cases of nonfeasance, the mandatary is not generally liable, because his undertaking being gratuitous, there is no consideration to support it; but in cases of misfeasance, the common law gives a remedy for the injury done, and to the extent of that injury. 5 T. R. 143; 4 John. Rep. 84; Story, Bailment, Sec. 165; 2 Ld. Raym. 909, 919, 920; 2 Johns. Cas. 92; Doct. & Stu. 210; 1 Esp. R. 74; 1 Russ. Cr. 140; Bouv. Inst. Index h.t.