There's No Such Thing as Affirmative Duty

• Author: Kenneth S. Abraham & Leslie Kendrick
• Position: David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law/Vice Dean and David H. Ibbeken ?71 Research Professor of Law, University of Virginia School of Law
• Pages: 1649-1698

1649

There’s No Such Thing as

Affirmative Duty

Kenneth S. Abraham* & Leslie Kendrick**

ABSTRACT: Tort law has long distinguished between misfeasance, which is

generally accompanied by a duty of care, and nonfeasance, which is generally

not. Thus, a driver has a duty to brake for a pedestrian in the street, but a

bystander has no duty to rescue him. Only in rare cases do parties like the

bystander have an “affirmative” duty to exercise reasonable care. But the idea

of affirmative duty has done more harm than good. The doctrinal treatments

of nonfeasance and affirmative duties too often encompass situations that

could just as easily be considered regular misfeasance cases. This, we argue,

is because even textbook illustrations of misfeasance and nonfeasance reveal

little real distinction between the two.

In effect, there is no such thing as affirmative duty, as tort law uses that term.

This Article’s primary objective is to show that this is the case and explain

why it is so. We reveal the descriptive and normative confusion surrounding

the concept of affirmative duty. We explain the sources of this confusion, both

conceptual and historical. And we begin the project of reconstructing existing

law on a firmer conceptual footing. As it turns out, this does not involve the

categories that tort law has historically relied on. Instead, these categories

contain within them other factors that help to define the scope of liability. In

the end, ideas such as misfeasance and nonfeasance, and regular duties and

“affirmative” duties, are largely beside the point.

I. INTRODUCTION ........................................................................... 1651

II.“AFFIRMATIVE DUTIES” IN TORT LAW ......................................... 1653

A.THE GENERAL RULE: NO LIABILITY FOR NONFEASANCE .......... 1654

B.THE EXCEPTIONAL “AFFIRMATIVE DUTIES” ............................ 1655

*

David and Mary Harrison Distinguished Professor of Law, University of Virginia School

of Law.

**

Vice Dean and David H. Ibbeken ‘71 Research Professor of Law, University of Virginia

School of Law. The authors would like to thank Vincent Blasi, Kimberly Kessler Ferzan, and Gregg

Strauss for helpful comments and Andrew Miller for excellent research assistance.

1650 IOWA LAW REVIEW [Vol. 104:1649

III. THE DUBIOUS DISTINCTION BETWEEN MISFEASANCE AND

NONFEASANCE ............................................................................ 1657

A.DESCRIPTIVELY DIFFICULT: THE DISTINCTION BETWEEN

MISFEASANCE AND NONFEASANCE .......................................... 1657

1.Defining “Conduct” .................................................... 1658

2.Conduct and Prior Risk Creation .............................. 1663

3.Special Relationships .................................................. 1665

B.NORMATIVE ATTEMPTS TO DISTINGUISH MISFEASANCE

AND NONFEASANCE ................................................................ 1667

1.Malicious Intent and Other Culpable Mental

States ............................................................................ 1668

2.But-For Causation........................................................ 1669

3.But-For Causation and Background Risk .................. 1669

4.Creating a Risk versus Conferring a Benefit ............. 1672

5.Characteristic Risks ..................................................... 1673

6.A Return to the Descriptive ........................................ 1674

IV. HOW WE GOT WHERE WE ARE ................................................... 1676

A.THE LIMITED JURISDICTION OF TORT ..................................... 1677

1.A Backdrop of Limited Duty in Tort ......................... 1677

2.Jurisdiction Outside of Tort ....................................... 1679

B.SEEMINGLY ADEQUATE DOCTRINAL ALTERNATIVES TO

WHOLESALE RETHINKING ...................................................... 1679

1.Independent Alternative Grounds for

Denying Liability ......................................................... 1679

2.Overlapping and Vague Exceptions that

Accepted the Distinction ............................................ 1680

C.IMPRECISION AND CONFUSION ABOUT KEY CONCEPTS .............. 1681

1.The Misused Concept of Misfeasance ....................... 1682

2.Imprecision about the Relation Between

Nonfeasance and Rescue ............................................ 1684

3.The Problematics of the Prior Risk-Creating

Conduct Exception ..................................................... 1685

V.TOWARD A RECONSTRUCTION .................................................... 1688

A.POSITIVE RECONSTRUCTION: THE AFFIRMATIVE DUTIES

INVOLVE CONVENTIONAL NEGLIGENCE ................................... 1688

1.Prior Risk-Creating Conduct ...................................... 1690

2.Relationships ............................................................... 1691

3.Prevention of Aid and Warnings to Others ............... 1692

B.NORMATIVE RECONSTRUCTION: DOING WHAT COMES

NATURALLY .......................................................................... 1692

VI.CONCLUSION .............................................................................. 1697

2019] THERE’S NO SUCH THING AS AFFIRMATIVE DUTY 1651

I. INTRODUCTION

An individual is driving a car down a city street. Suddenly, a pedestrian

steps out in front of it. What must the driver do? Under American tort law,

the driver must exercise reasonable care to prevent the impending collision.

Imagine, at the same time, that a bystander on the corner sees the pedestrian

step into the street. What obligations does the bystander have? Under

American tort law, none. The bystander has no duty to act to prevent the

impending collision. This disparity is often explained in tort law as the

difference between misfeasance and nonfeasance.1

One of the fundamental propositions in tort law is that misfeasance

results in much more liability than nonfeasance. The general idea is that doing

something—creating some kind of risk—usually generates liability, while not

doing something—failing to reduce a risk one did not create or failing to

confer a benefit—usually does not.2 The driver who negligently hits a

pedestrian commits misfeasance and is subject to liability. A bystander who

fails to rescue the pedestrian commits only nonfeasance and is not.3

This distinction is also often framed in terms of duty. In most cases, when

acting, individuals have a duty to act with reasonable care to avoid risking

physical harm. But to impose such a duty on those who are not acting—who

merely fail to reduce a risk or confer a benefit—is to impose an “affirmative

duty.”4 Affirmative duties, it is often said, are exceptional.5 The most cited

1. See, e.g., John M. Adler, Relying upon the Reasonableness of Strangers: Some Observations About

the Current State of Common Law Affirmative Duties to Aid or Protect Others, 1991 WIS. L. REV. 867, 872

(“The common law’s reluctance to require one to render aid to a stranger rests upon the

distinction between misfeasance and nonfeasance . . . .”).

2. See, e.g., Francis H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U.

PA. L. REV. & AM. L. REG. 217, 219 (1908). Bohlen explains the dichotomy:

There is no distinction more deeply rooted in the common law and more

fundamental than that between misfeasance and non-feasance, between active

misconduct working positive injury to others and passive [inaction], a failure to take

positive steps to benefit others, or to protect them from harm not created by any

wrongful act of the defendant.

Id.

3. One could argue that the driver’s action should be framed as inaction—failing to

brake—and thus should count as nonfeasance as well. Indeed, later on, this Article will seek to

complicate the distinction between the two. But tort law has typically viewed the driver as

committing misfeasance. See, e.g., Harold F. McNiece & John V. Thornton, Affirmative Duties in

Tort, 58 YALE L.J. 1272, 1272–73 (1949) (calling such instances “pseudo-nonfeasance”); Ernest

J. Weinrib, The Case for a Duty to Rescue, 90 YALE L.J. 247, 253–54 (1980) (identifying omissions

that constitute misfeasance).

4. See infra note 9 and accompanying text.

5. See, e.g., KENNETH S. ABRAHAM, THE FORMS AND FUNCTIONS OF TORT LAW 260 (5th ed.

2017) (stating that the general rule is that there is no affirmative duty but noting that in cases involving

special relationships or when engaging in certain activities an affirmative duty may be created).