There's No Such Thing as Affirmative Duty

By Abraham, Kenneth S.; Kendrick, Leslie | Iowa Law Review, May 2019 | Go to article overview

There's No Such Thing as Affirmative Duty


Abraham, Kenneth S., Kendrick, Leslie, Iowa Law Review


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 illustration of this fact is that tort law does not impose a general duty to rescue in cases like that of the bystander.6

But these labels do little to draw real distinctions. The driver's responsibility to brake is characterized as a "duty" to avoid "misfeasance," though some would frame it instead as an "affirmative duty" not to engage in the "nonfeasance" of failing to hit the brake.7 Conversely, many obligations that the court frames as "affirmative" duties seem indistinguishable from the general "duty" to avoid "misfeasance." A landlord has an "affirmative duty" to foresee that the level of security in its apartment building might have an effect on its tenants' risk of being robbed or assaulted.8 But if that duty is affirmative, why is the driver's not also? The landlord's duty involves anticipating risk and taking precautions to reduce it, just as the driver's does. It involves taking these precautions to avoid an unfortunate interplay with other people's choices, just as the driver's does. If both of these cases could be framed as affirmative duties and both could be framed as not affirmative duties, then there is confusion about the whole concept of affirmative duty.

We contend that the very idea of an affirmative duty-as actually found and typically explained in tort law, is misguided. Nor is the distinction between duty and affirmative duty a mere matter of mislabeling. Both the term "affirmative duty" and the distinction between misfeasance and nonfeasance fail to draw meaningful distinctions between the cases to which tort law applies these notions. These concepts obscure rather than clarify the issues posed.

In order to move from confusion to clarification at this point in the history and evolution of these notions, two things are required. First, the distinctions between duty and affirmative duty and between misfeasance and nonfeasance, must be deconstructed. The reasons that these distinctions do not hold up to scrutiny must be uncovered. Second, a more sensible approach to thinking about the cases that allegedly involve affirmative duty must be constructed. That reconstruction should recognize what has led the courts and commentators to employ the category of affirmative duty, but it must also develop a better way to analyze the issues the affirmative duty cases pose than the traditional categorization has permitted.

We undertake these tasks in the following manner. In Part II, we offer an overview of the traditional distinction between misfeasance and nonfeasance, the "affirmative duty" rules the distinction generates, and the categories into which these rules fall. …

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