misfeasance


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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.

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)

misfeasance

noun breach of law, civil wrong, deviation from rectitude, improper action, improper performance, infringement, injurious exercise of lawful auuhority, injurious exercise of authority, misconduct, misdeed, misdoing, offense, offense against the law, official misconnuct, peccadillo, transgression, unlawful use of power, violaaion of law, wrong, wrong arising from affirmative action, wrongdoing, wrongful performance of a normally legal act, wrongfulness
Associated concepts: malfeasance, negligence, nonfeasance
See also: bad faith, crime, delict, fault, guilt, infringement, maladministration, misconduct, misdeed, misdemeanor, misdoing, misprision, offense, responsibility, tort, transgression

misfeasance

doing something, essentially legal, wrongly, as opposed to not doing something at all that should have been done (which is called non-feasance).

A species of the tort is misfeasance in public office. Traditionally this was the case of directed malice intended to injure a person - the exercise of public power for an ulterior motive. The House of Lords has recently given new life to the tort by holding that a public officer would be liable for the tort if he acted in the knowledge of or with reckless indifference to the illegality of his acts or with reckless indifference to the probability of causing injury to the particular plaintiff or a class of which the plaintiff was a member. This form of the tort depends upon the absence of an honest belief by the officer that his act was lawful.

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.

References in periodicals archive ?
Rather, it is to explore how the debate can help provide a theoretical grounding for the tort of misfeasance in a public office, which has experienced a resurgence in recent years.
The misfeasance tort, however, has risen to some prominence in the last 20 or so years.
Roncarelli appears in most histories of the evolution of a specifically public law tort of misfeasance in public office, although no such label appeared in the case itself.
However, to the author's knowledge, the claim by Abdelrazik will be the most high-profile instance of misfeasance in a public office being claimed for the exercise of a prerogative power (i.e., the refusal to issue a passport).
The family of a Toronto man who was shot and killed by police officers sued the officers, the Chief of Police, and the Police Board for misfeasance of public office and negligence.
* Breach of fiduciary duty: Recognized at common law, including misfeasance, nonfeasance, abdication of duty, abuse of trust and/or the approval of unlawful transactions.
Charles Slepian, an attorney and an aviation security consultant, blasts the TSA for its combination of "misfeasance, malfeasance, and nonfeasance," Slepian says that "across the board on a daily basis we're seeing stories of TSA failures, and TSA just brushes them off." "I think it's time," he says, "for the TSA to step aside in some instances" and let experienced aviation security experts take over.
While corporate greed, malfeasance, misfeasance and nonfeasance dominate today's headlines, as well as rob shareholders and employees and erode confidence in the stock market, let's be reassured in knowing that the vast majority of American businesspersons run their companies with probity and civility--and still turn a profit.
Instead of expressing a little executive impatience, even anger at possible misfeasance, this President responds, once again, by calling for more secrecy in government, more silence from his critics.
Taking shots at the government for some malfeasance or misfeasance is, in editor's parlance, "shooting fish in a barrel." Too easy.
Of course, banking supervisors have broad powers that allow us to remove an audit firm if there is evidence of nonfeasance, misfeasance, or malfeasance.
In Ortega, the Court offered three examples of legitimate work-related reasons for employers to search employee work spaces: 1) The need to obtain correspondence or a file or report available only in an employee's office while the employee is away from the office; 2) the need to safeguard or identify state property or records in an office in connection with a pending investigation into suspected employee misfeasance; and 3) the need to conduct a routine inventory for the purpose of securing government property.