Negligence - Failure to act

Learning Outcomes

After reading this article, you will be able to identify when a defendant’s failure to act can give rise to liability in negligence. You will understand the general rule that there is no duty to act, the exceptions that create affirmative duties, and how these principles are tested on the MBE. You will be able to apply these rules to MBE-style questions involving omissions and special relationships.

MBE Syllabus

For MBE, you are required to understand when a defendant’s inaction may constitute a breach of duty in negligence. This includes knowing the general rule, recognizing exceptions, and applying these to fact patterns. You should be able to:

  • State the general rule that there is no duty to act for the benefit of others.
  • Identify the exceptions that create an affirmative duty to act, including special relationships and voluntary undertakings.
  • Distinguish between nonfeasance (failure to act) and misfeasance (active misconduct).
  • Apply these principles to scenarios involving rescuers, creation of risk, and statutory duties.
  • Recognize how these issues are examined in MBE questions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is generally true regarding a bystander’s duty to rescue a stranger in danger?
    1. The bystander is always liable for failing to help.
    2. The bystander is liable only if a statute imposes a duty.
    3. The bystander is not liable unless an exception applies.
    4. The bystander is liable if the victim is a minor.
  2. A hotel guest is injured in her room. Does the hotel owe her a duty to assist?
    1. No, unless the guest requests help.
    2. Yes, due to the special relationship.
    3. No, unless the hotel caused the injury.
    4. Yes, but only if the guest is unconscious.
  3. If a person voluntarily begins to help an injured stranger but then abandons the effort, what is the likely result?
    1. No liability, because there is no duty to act.
    2. Liability only if the rescuer acted negligently after starting to help.
    3. Liability for any increased harm caused by abandoning the rescue.
    4. Liability only if the rescuer is a medical professional.

Introduction

Negligence law generally does not require a person to take action to benefit others. This is known as the “no duty to act” or “no duty to rescue” rule. However, there are important exceptions where the law imposes an affirmative duty to act. Understanding when a failure to act can give rise to liability is essential for the MBE, as questions often test your ability to spot these exceptions and apply them to fact patterns.

Key Term: Failure to Act (Omission) A defendant’s lack of action in circumstances where a duty to act may arise, potentially leading to liability in negligence if a recognized exception applies.

The General Rule: No Duty to Act

In negligence, a person is usually not required to take steps to help another or prevent harm to them. This means that, absent a special circumstance, a bystander who sees someone in danger is not legally required to intervene.

Key Term: Nonfeasance The failure to take action to prevent harm to another, as opposed to misfeasance, which is active misconduct.

Exceptions: When a Duty to Act Arises

There are specific situations where the law imposes an affirmative duty to act. These exceptions are frequently tested on the MBE.

1. Special Relationships

Certain relationships create a duty to take reasonable steps to protect or assist another. These include:

  • Common carrier and passenger
  • Innkeeper and guest
  • Landowner and invitee (in some circumstances)
  • Employer and employee
  • Parent and child
  • Custodian and person in custody

Key Term: Special Relationship A legally recognized relationship that imposes an affirmative duty on one party to act for the protection or aid of another.

2. Voluntary Undertaking

If a person voluntarily begins to help another in danger, they may be required to continue to act with reasonable care. Abandoning the rescue or acting carelessly may result in liability for any increased harm.

Key Term: Voluntary Undertaking When a person begins to assist another, creating a duty to act with reasonable care in providing that assistance.

3. Creation of Risk

If a person’s conduct (even if innocent) puts another in danger, the person has a duty to take reasonable steps to prevent further harm.

Key Term: Creation of Risk When a person’s actions, whether negligent or not, create a hazardous situation, imposing a duty to mitigate the resulting danger.

4. Statutory Duty

Sometimes, a statute imposes a duty to act (e.g., mandatory reporting laws, Good Samaritan statutes). Breach of such a statutory duty may result in negligence per se.

Key Term: Statutory Duty An obligation to act imposed by statute, the breach of which may constitute negligence.

5. Contractual Duty

A contract may create a duty to act, such as a lifeguard’s duty to rescue swimmers or a nurse’s duty to care for patients.

Worked Example 1.1

A man is walking by a river and sees a child struggling in the water. He does nothing, and the child drowns. Is the man liable for failing to rescue?

Answer: No. There is no general duty to rescue a stranger. Unless the man had a special relationship with the child, created the danger, or began a rescue and abandoned it, he is not liable for failing to act.

Worked Example 1.2

A bus driver sees a passenger collapse on the floor of the bus. The driver ignores the passenger and continues the route. The passenger suffers further injury due to the delay in receiving help. Is the bus company liable?

Answer: Yes. A common carrier has a special relationship with its passengers and owes a duty to take reasonable steps to assist them in emergencies.

Worked Example 1.3

A hiker accidentally knocks a rock down a hill, which traps another hiker’s leg. The first hiker walks away without seeking help. Is there liability?

Answer: Yes. By creating the risk (even accidentally), the first hiker has a duty to take reasonable steps to assist or summon help for the injured person.

Exam Warning

On the MBE, do not assume a duty to act exists unless you can identify a recognized exception. Many questions test your ability to distinguish between nonfeasance (no liability) and situations where an affirmative duty arises.

Revision Tip

When analyzing MBE questions, always ask: Did the defendant have a special relationship, create the risk, or begin a rescue? If not, the general rule of no duty likely applies.

Key Point Checklist

This article has covered the following key knowledge points:

  • There is generally no duty to act or rescue in negligence law.
  • Affirmative duties arise only in specific exceptions: special relationships, voluntary undertakings, creation of risk, statutory or contractual duties.
  • Voluntarily beginning a rescue creates a duty to act with reasonable care.
  • Failure to act is nonfeasance; liability requires a recognized exception.
  • The MBE often tests your ability to spot when a duty to act exists.

Key Terms and Concepts

  • Failure to Act (Omission)
  • Nonfeasance
  • Special Relationship
  • Voluntary Undertaking
  • Creation of Risk
  • Statutory Duty
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