Negligence - Failure to act

Learning Outcomes

This article explains negligence liability for failures to act, including:

• Identifying when a defendant’s omission can be the basis of a negligence claim, and distinguishing truly passive conduct from disguised misfeasance in exam fact patterns
• Articulating the default “no duty to act” rule, its policy justifications, and how it frames duty analysis on the MBE
• Recognizing each category that creates an affirmative duty to rescue or protect—special relationships, voluntary undertakings, creation of risk, statutes, and contracts—and knowing the scope of each duty
• Differentiating nonfeasance from misfeasance and explaining how that distinction affects whether the plaintiff can reach a jury on duty and breach
• Applying affirmative-duty doctrines to common MBE scenarios involving bystanders, rescuers, landowners, employers, schools, common carriers, medical providers, and institutional defendants
• Spotting when Good Samaritan statutes, statutory reporting or rescue duties, and contractual arrangements expand, limit, or immunize negligence liability for omissions
• Using a structured checklist approach to quickly test for the presence of any exception to the no-duty rule and to eliminate distractor answers that assume a general duty to rescue

MBE Syllabus

For the MBE, you are required to understand when inaction can constitute negligence, with a focus on the following syllabus points:

• The general rule that there is no duty to act or rescue strangers
• The main exceptions that create an affirmative duty to act
• The difference between nonfeasance and misfeasance in duty analysis
• How duties arise when the defendant creates a risk, undertakes a rescue, or has a special relationship
• The role of statutory and contractual duties in negligence questions
• How these concepts appear in questions about rescuers, landowners, employers, common carriers, and professionals

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 analysis on the MBE usually starts with duty. When the alleged negligence is a failure to act rather than careless action, duty becomes a threshold issue.

American tort law follows a strong no-duty-to-rescue principle: absent special circumstances, a person is not legally required to affirmatively help another, even if the assistance would be easy or risk-free. The law distinguishes moral obligations from legal ones.

Key Term: Failure to Act (Omission)
A defendant’s lack of action in circumstances where a duty to act might arise. Liability for an omission generally requires that a recognized exception to the no-duty rule applies.

Most negligence cases involve someone who acted but did so carelessly (e.g., bad driving, unsafe construction). Those are cases of misfeasance, where a duty to use reasonable care is rarely questioned. In contrast, nonfeasance—doing nothing at all—is usually not actionable unless an affirmative duty can be identified.

Key Term: Nonfeasance
A pure failure to take action to prevent harm to another. Nonfeasance is generally not actionable in negligence unless a special duty to act exists.

Key Term: Misfeasance
Active conduct that is performed carelessly and creates or increases a risk of harm to others. Misfeasance almost always triggers the ordinary duty of reasonable care.

On the MBE, many questions about omissions are really duty questions in disguise. Before discussing breach, causation, or damages, you should ask:

• Is this nonfeasance or misfeasance?
• If it is nonfeasance, does any exception create an affirmative duty to act?

Key Term: Affirmative Duty to Act
A legal obligation to take positive steps to aid or protect another, rather than merely to refrain from causing harm.

The General Rule: No Duty to Act

In negligence, individuals usually have no legal duty to aid, rescue, or protect others from harm they did not cause. Even if a rescue would be simple—such as calling 911 or throwing a life ring—and even if failing to help seems morally wrong, the law does not impose liability in the absence of a special duty.

This is why a bystander who merely watches a stranger drown, without more, is not liable in negligence.

On the MBE:

• Do not assume a duty to rescue exists just because help would have been easy, costless, or humane.
• You must be able to tie any alleged duty to a recognized category that creates an affirmative obligation.

Nonfeasance vs. Misfeasance in Duty Analysis

This distinction is often the pivot of the fact pattern:

• If the defendant acted, but did so carelessly (e.g., drove, treated, constructed, inspected), you are in misfeasance territory. The duty question becomes: what is the applicable standard of care (reasonable person, professional, landlord, etc.)?
• If the defendant did nothing at all, and the theory is “you should have helped,” you are in nonfeasance territory. The question becomes: does some special rule impose an affirmative duty?

MBE questions frequently turn on spotting that the defendant’s role was purely passive and then asking whether any exception applies.

Exceptions: When a Duty to Act Arises

Although the default rule is “no duty to rescue,” several important exceptions create affirmative duties. These are highly testable.

Key Term: Duty to Rescue
A shorthand for situations in which the law imposes an affirmative obligation to render aid or protection. Under U.S. tort law, a general duty to rescue strangers does not exist; duties arise only in specific recognized situations.

1. Special Relationships

Certain relationships create a duty to take reasonable steps to protect or assist another. These arise where one party is vulnerable or dependent and the other has control, custody, or an undertaking of care.

Common examples:

• Common carrier and passenger (bus, train, airline)
• Innkeeper and guest (hotel, motel)
• Land possessor and invitee in many circumstances (e.g., store–customer)
• Employer and employee (while at work)
• School and student (especially young children)
• Parent and child
• Custodian and person in custody (jailer–prisoner, hospital–patient in some settings)

Key Term: Special Relationship
A legally recognized relationship in which one party must use reasonable care to aid or protect the other against certain risks, including risks from third parties or from the other’s own incapacity.

Scope of the duty:

• It is a duty of reasonable care, not a guarantee of safety.
• Often satisfied by reasonable assistance, such as summoning medical help, providing basic first aid, or taking reasonable protective measures.
• The duty is usually limited to harms that are reasonably foreseeable in light of the relationship.

For example, a common carrier must take reasonable steps to assist a sick passenger; an innkeeper must take reasonable steps to protect guests from foreseeable criminal attacks in the premises.

2. Voluntary Undertaking

A person who voluntarily begins to help another may create a duty to exercise reasonable care in providing that assistance.

Key Term: Voluntary Undertaking
When a person, having no prior duty, chooses to render aid or services and thereby assumes a duty to act with reasonable care, including an obligation not to leave the person worse off.

Two core ideas:

• Once the defendant starts helping, they must act as a reasonably prudent rescuer would.
• They may be liable for increasing the risk of harm or for harm caused because others reasonably relied on their continued assistance.

Typical MBE patterns:

• A driver stops at an accident, begins first aid, then abandons the victim in a worse position.
• A host undertakes to drive an intoxicated guest home, then abandons the plan, leaving the guest at greater risk.

Many states also have Good Samaritan statutes that protect rescuers from liability for ordinary negligence in emergency aid, usually while still allowing liability for gross negligence or willful misconduct. If such a statute is mentioned, read it closely and apply it as written.

3. Creation of Risk

A person whose conduct—even if initially non-negligent—creates a risk of harm to another has a duty to take reasonable steps to prevent further harm.

Key Term: Creation of Risk
When a person’s actions place another in danger or create a hazardous situation, imposing a duty to use reasonable care to mitigate the danger and assist the person at risk.

Key points:

• The initial act need not be wrongful. Accidentally knocking someone into a river or accidentally spilling oil on a stairway still triggers a duty once you realize the danger.
• The duty usually includes:
  • Taking reasonable steps to remove or reduce the risk (e.g., moving the injured person out of the road, cleaning the spill), and
  • Summoning appropriate help (calling emergency services).

This doctrine transforms what seems like nonfeasance (“you didn’t help”) into misfeasance (“you created the danger and then failed to act reasonably in response”), which supports a duty.

4. Statutory Duty

Legislatures sometimes impose affirmative duties to act. These may be narrow (mandatory reporting) or more general (some states have limited “duty to assist” statutes).

Key Term: Statutory Duty
An obligation to act imposed by statute. Breach may be evidence of negligence or may constitute negligence per se if the statute is designed to protect the class of persons and type of harm involved.

On the MBE:

• If a statute explicitly requires assistance (e.g., drivers involved in collisions must render aid and call for help), violation can be treated under negligence per se analysis if:
  • The plaintiff is in the class the statute seeks to protect, and
  • The harm is of the type the statute aims to prevent.
• Some statutes provide Good Samaritan immunity rather than imposing a duty. In that case, the statute limits liability instead of creating it; apply the text as written.

Unless a statute is set out in the problem, assume the common-law no-duty rule applies.

5. Contractual Duty

Contracts can create duties to act that have tort consequences.

Key Term: Contractual Duty
An obligation to provide services or protection arising from a contract, the breach of which may also give rise to a tort duty toward persons foreseeably injured by non-performance.

Examples:

• A lifeguard employed by a city to supervise a pool owes swimmers a duty to exercise reasonable care in monitoring and rescuing.
• A hospital under contract to provide emergency services owes patients duties that may sound in both contract and tort.
• An elevator maintenance company may owe building occupants a duty of reasonable care in performing inspections and repairs.

Important MBE point: A plaintiff need not be a party to the contract to sue in tort. If the contractual undertaking was intended to protect persons like the plaintiff, a tort duty can arise when negligent non-performance causes physical injury.

Standard of Care in Affirmative Duty Cases

In all of these exceptions, remember:

• The defendant is not an insurer of safety.
• The duty is to act as a reasonably prudent person in the circumstances of that relationship, undertaking, or risk.
• The law does not require the defendant to risk serious harm to themselves to perform a rescue, unless some higher professional or contractual obligation applies.

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. This is pure nonfeasance. There is no general duty to rescue a stranger. Unless the man had a special relationship with the child, created the danger, began a rescue, or was subject to a specific statutory duty, he has no affirmative duty to act. Moral blameworthiness does not create a legal duty.

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–passenger relationship is a classic special relationship. The carrier must use reasonable care to assist passengers who are ill or injured. Reasonable care here would at least include stopping and summoning medical help. The driver’s failure to act can be a breach of duty attributable to the company.

Worked Example 1.3

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

Answer:
Yes, potentially. By dislodging the rock, the first hiker created a risk and placed the other hiker in danger. That triggers a duty to take reasonable steps to assist, such as calling for help or trying to free the trapped hiker if safe. Walking away without doing anything may breach that duty.

Worked Example 1.4

A passerby sees a bicyclist hit by a car. The passerby tells the bicyclist, “I’m a nurse, I’ll take care of you,” moves her off the road, briefly checks her, then leaves, assuming someone else will help. The bicyclist suffers increased harm because of the delay. Is the passerby liable?

Answer:
Possibly. By announcing she would help and taking charge of the situation, the passerby made a voluntary undertaking. She then had a duty to exercise reasonable care in providing aid, which generally includes not abandoning the victim in a worse position and at least arranging further assistance. Liability is limited to the harm caused or increased by her negligent undertaking or abandonment. A Good Samaritan statute, if present, might limit liability for ordinary negligence but usually not for gross negligence.

Worked Example 1.5

A hotel security guard witnesses an assault on a guest in a hallway. The guard can safely intervene or at least call the police but instead walks away. The guest is seriously injured. Is the hotel liable?

Answer:
Likely yes. The innkeeper–guest special relationship imposes a duty on the hotel to take reasonable steps to protect guests from foreseeable criminal acts in common areas. The guard’s failure to call for help or take reasonable protective measures is nonfeasance, but it occurs within a special relationship that imposes an affirmative duty.

Additional Exam-Focused Nuances

Rescuers as Foreseeable Plaintiffs

Even when the defendant is being sued for creating a risk (rather than failing to rescue), remember the rescuer doctrine: “danger invites rescue.” A person who negligently endangers another owes a duty not only to that person but also to rescuers who are injured while reasonably attempting a rescue. That is a proximate-cause issue more than a failure-to-act issue, but it frequently appears in the same fact patterns.

Duty to Control Third Persons

Some special relationships create duties not just to aid but to control third parties:

• Parent–child
• Employer–employee (on the job)
• Custodian–ward (prisoner, psychiatric patient)

If the defendant has authority and ability to control a third person and knows (or should know) that the third person poses a risk of harm, a duty may arise to take reasonable steps to prevent harm to foreseeable victims.

Interaction with Statutes and Immunities

Be alert on the MBE for:

• Statutes that create duties (e.g., reporting, driver assistance) → potential negligence per se.
• Statutes that limit liability (Good Samaritan laws, governmental immunities) → they do not create duties but may negate or narrow common-law liability even when a duty would otherwise exist.

Read any quoted statute word-for-word and apply it before defaulting to common-law principles.

Exam Warning

On the MBE, do not assume a duty to act exists unless you can identify a recognized source: special relationship, voluntary undertaking, creation of risk, statute, or contract. If none applies and the defendant’s conduct is pure nonfeasance, the correct answer is often “no duty” and therefore no negligence.

Revision Tip

When you see a failure-to-act fact pattern, run a quick checklist:
– Did the defendant have a special relationship with the plaintiff?
– Did the defendant create the danger?
– Did the defendant begin a rescue or undertaking?
– Did a statute or contract impose a duty?
If you cannot answer “yes” to any of these, the general no-duty rule almost certainly controls.

Key Point Checklist

This article has covered the following key knowledge points:

• The default rule in negligence is no duty to act or rescue strangers.
• Nonfeasance (pure inaction) is generally not actionable; misfeasance (careless action) is.
• Affirmative duties to act arise in limited categories: special relationships, voluntary undertakings, creation of risk, and statutory or contractual duties.
• Special relationships such as carrier–passenger, innkeeper–guest, and employer–employee require reasonable assistance or protection.
• A person who creates a danger, even innocently, must take reasonable steps to mitigate the risk and aid those endangered.
• A rescuer who voluntarily undertakes to help must exercise reasonable care and may be liable for increased harm caused by negligent rescue or abandonment.
• Statutes may either impose affirmative duties (supporting negligence per se) or limit liability (Good Samaritan laws); exam questions will provide the relevant text.
• Contractual obligations to protect or assist can give rise to tort duties toward third persons foreseeably harmed by non-performance.
• In omission cases, the correct answer often hinges on correctly identifying whether any exception to the no-duty rule applies.

Key Terms and Concepts

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