nonfeasance


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Nonfeasance

The intentional failure to perform a required duty or obligation.

Nonfeasance is a term used in Tort Law to describe inaction that allows or results in harm to a person or to property. An act of nonfeasance can result in liability if (1) the actor owed a duty of care toward the injured person, (2) the actor failed to act on that duty, and (3) the failure to act resulted in injury.

Originally the failure to take affirmative steps to prevent harm did not create liability, and this rule was absolute. Over the years courts have recognized a number of situations in which a person who does not create a dangerous situation must nevertheless act to prevent harm.

Generally a person will not be held liable for a failure to act unless he or she had a preexisting relationship with the injured person. For example, if a bystander sees a stranger drowning and does not attempt a rescue, he cannot be liable for nonfeasance because he had no preexisting relationship with the drowning person. The bystander would not be liable for the drowning even if a rescue would have posed no risk to him.

However, if the victim is drowning in a public pool and the bystander is a lifeguard employed by the city, and if the lifeguard does not act to help, she may be held liable for the drowning because the lifeguard's employment places her in a relationship with swimmers in the pool. Because of this relationship, the lifeguard owes a duty to take affirmative steps to prevent harm to the swimmers.

Courts have found a preexisting relationship and a duty to act in various relationships, such as the relationship between Husband and Wife, innkeeper and guest, employer and employee, jailer and prisoner, carrier and passenger, Parent and Child, school and pupil, and host and guest. A person who renders aid or protection to a stranger also may be found liable if the rescuer does not act reasonably and leaves the stranger in a more dangerous position, even if the rescuer had nothing to do with the initial cause of the stranger's dilemma.

Courts have found a duty to act if a person does something innocuous that later poses a threat and then fails to act to prevent harm. For example, assume that Johnny loans a powerful circular saw to Bobby. If Johnny later remembers that the bolt securing the blade is loose and that the blade will dislodge in a dangerous manner when the saw is used, Johnny must try to warn Bobby. If Bobby is injured because Johnny failed to act, Johnny can be held liable for nonfeasance.

In theory nonfeasance is distinct from misfeasance and malfeasance. Malfeasance is any act that is illegal or wrongful. Misfeasance is an act that is legal but improperly performed. Nonfeasance, by contrast, is a failure to act that results in harm.

In practice the distinctions between the three terms are nebulous and difficult to apply. Courts in various jurisdictions have crafted different rules relating to the terms. The most difficult issue that faces courts is whether to imply a duty to act and find liability for the failure to act.

Originally courts used the term nonfeasance to describe a failure to act that did not give rise to liability for injuries. The meaning of the term reversed direction over time, and most courts now use it to describe inaction that creates liability.

Further readings

Kionka, Edward J. 1999. Torts in a Nutshell. 3d ed. St. Paul, Minn.: West Group.

Rowe, Jean Elting, and Theodore Silver. 1995. "The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth Through the Twentieth Centuries." Duquesne Law Review 33 (summer).

Cross-references

Good Samaritan Doctrine.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

nonfeasance

n. the failure of an agent (employee) to perform a task he/she has agreed to do for his/her principal (employer), as distinguished from "misfeasance" (performing poorly) or "malfeasance" (performing illegally or wrongly). (See: misfeasance, malfeasance)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

nonfeasance

a failure to act when under an obligation to do so.
Collins Dictionary of Law © W.J. Stewart, 2006
References in periodicals archive ?
A line could be drawn between affirmative action of the state that causes take (cases of misfeasance, such as Defenders and Coxe) and a lack of appropriate regulations (cases of nonfeasance, such as Loggerhead Turtle).
The court's holding in Tauchert was not entirely novel or without common law support in that, at common law, misfeasance was described as being a positive wrong whereas nonfeasance was framed as an omission.
The second offence (nonfeasance) related to advertent and very serious neglect of duty, and had no requirement as to motive: at 58 [19].
1881) ("The books of reports for a quarter of a century show that a very large proportion of actions of this nature, both for nonfeasance and for misfeasance, are against corporations.")
He observed that the supposed irrationality of the distinction between misfeasance and nonfeasance did not mean that it was indefensible in policy terms:
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(34.) A "breach of fiduciary duty" refers to "any breach of a fiduciary or similar duty [owed to an issuer] under an applicable Federal or State statute or at common law, including but not limited to misfeasance, nonfeasance, abdication of duty, abuse of trust, and approval of unlawful transactions." 17 C.F.R.
While the Senate Committee on Public Lands and Surveys focused on the actions of the Department of the Interior in leasing naval oil reserves, a Senate select committee was constituted to investigate "charges of misfeasance and nonfeasance in the Department of Justice" (17) in failing to prosecute the malefactors in the Department of the Interior, as well as other cases.
The current MTA auction and subway extension schemes raise questions of failure of fiduciary responsibility, malfeasance, nonfeasance and/or incompetence on the part of the government officials involved.
Surely this is an act of negligence, nonfeasance or malfeasance?
The continuing doctrinal ambiguity has prompted one commentator to argue: The Delaware legislature should establish by statute that monetary liability may not be imposed on corporate directors for breach of the "duty of care," but that monetary liability may be imposed for breach of the "duty of loyalty," defined to include cases involving financial conflicts of interest, other improper personal benefits, conscious malfeasance, and conscious nonfeasance. (25)
"Some Democrats," Reich said, "want to expose the malfeasance and nonfeasance of the Bush Administration--find out who really knew what and when with regard to weapons of mass destruction, Abu Ghraib, Katrina, payoffs to Abramoff, and all the other rot.