What is a "duty to act"? What is "failure to act"?

In personal injury and other tort cases, the phrase “duty to act” may refer to one of two things. First, people generally have a duty to act with reasonable care to prevent harm. If a person fails to do so, he may be liable for negligence. More often, however, the phrase “duty to act” means that a person has a duty to do a specific thing, and that if he fails to do it, he may be liable for failure to act.

In most situations, there is no affirmative duty to act. People have a responsibility to avoid doing things that might cause harm to others, but they usually do not have a duty to  jump in and prevent harm when it is occurring. Even if a person says he will help someone, his mere words may not be enough to create a duty to act.

There are, however, a few exceptions to the rule that there is no duty to act. The exceptions include:

  • A person who causes a harmful situation has a duty to act to help another person get out of harm’s way. The duty to act includes both people at risk of being injured and people who have already been injured and are at risk of further injury.
  • A person who takes responsibility for an injured person has a duty to act to secure that person’s safety, including necessary medical care. He may not start helping the injured person and then abandon him.
  • Some state laws require people to act to help one another, if the first person can act without endangering himself.
  • A person who encourages another person to commit a tort is responsible for any injuries caused by the tort.
  • A person who encourages  a child or mentally incompetent adult to do something that may harm that person is responsible for that person’s injuries.
  • People in a special relationship with one another have a duty to act to protect one another’s safety. Special relationships that create a duty to act include employer/employee relationships, friends or companions at a social event, and business inviters and invitees in premises liability cases.

Also, negligence law does not usually impose a duty to rescue or defend someone else, as long as the would-be rescuer did not cause the danger. Even if a bystander realizes another person is in danger, the bystander generally does not have a duty to rescue that person and cannot therefore be held liable if the bystander chooses not to act.

Like the standard duty to act, however, a duty to act to rescue or defend someone does exist if the person in danger and the rescuer or defender have a certain type of relationship toward one another. Relationships that may create a duty to rescue or defend include:

  • Common carriers like railroads may have a duty to rescue or defend a passenger.
  • Innkeepers may have a duty to rescue or defend a guest. However, colleges and universities generally do not have a duty to protect dormitory residents from one another. A landlord and tenant may have a duty to rescue or defend one another if one knows that a dangerous individual or condition is in the area.
  • Businessowners may have a duty to rescue or defend customers or clients.
  • The legal guardian or custodian of a child may have a duty to rescue or defend the child.
  • Employers and employees may have a legal duty to rescue or defend one another if one is in imminent danger.
  • A physician has a duty to warn or protect if she reasonably believes her patient poses an imminent risk to himself or others.

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