The intentional failure to perform a required duty or obligation.
Nonfeasance is a term used in tort law to describe inaction that allows or results in harm to a person or to property. An act of nonfeasance can result in liability if (1) the actor owed a duty of care toward the injured person, (2) the actor failed to act on that duty, and (3) the failure to act resulted in injury.
Originally the failure to take affirmative steps to prevent harm did not create liability, and this rule was absolute. Over the years courts have recognized a number of situations in which a person who does not create a dangerous situation must nevertheless act to prevent harm.
Generally a person will not be held liable for a failure to act unless he or she had a preexisting relationship with the injured person. For example, if a bystander sees a stranger drowning and does not attempt a rescue, he cannot be liable for nonfeasance because he had no preexisting relationship with the drowning person. The bystander would not be liable for the drowning even if a rescue would have posed no risk to him.
However, if the victim is drowning in a public pool and the bystander is a lifeguard employed by the city, and if the lifeguard does not act to help, she may be held liable for the drowning because the lifeguard's employment places her in a relationship with swimmers in the pool. Because of this relationship, the lifeguard owes a duty to take affirmative steps to prevent harm to the swimmers.
Courts have found a preexisting relationship and a duty to act in various relationships, such as the relationship between husband and wife, innkeeper and guest, employer and employee, jailer and prisoner, carrier and passenger, parent and child, school and pupil, and host and guest. A person who renders aid or protection to a stranger also may be found liable if the rescuer does not act reasonably and leaves the stranger in a more dangerous position, even if the rescuer had nothing to do with the initial cause of the stranger's dilemma.
Courts have found a duty to act if a person does something innocuous that later poses a threat and then fails to act to prevent harm. For example, assume that Johnny loans a powerful circular saw to Bobby. If Johnny later remembers that the bolt securing the blade is loose and that the blade will dislodge in a dangerous manner when the saw is used, Johnny must try to warn Bobby. If Bobby is injured because Johnny failed to act, Johnny can be held liable for nonfeasance.
In theory nonfeasance is distinct from misfeasance and malfeasance. Malfeasance is any act that is illegal or wrongful. Misfeasance is an act that is legal but improperly performed. Nonfeasance, by contrast, is a failure to act that results in harm.
In practice the distinctions between the three terms are nebulous and difficult to apply. Courts in various jurisdictions have crafted different rules relating to the terms. The most difficult issue that faces courts is whether to imply a duty to act and find liability for the failure to act.
Originally courts used the term nonfeasance to describe a failure to act that did not give rise to liability for injuries. The meaning of the term reversed direction over time, and most courts now use it to describe inaction that creates liability.
Kionka, Edward J. 1999. Torts in a Nutshell. 3d ed. St. Paul, Minn.: West Group.
Rowe, Jean Elting, and Theodore Silver. 1995. "The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance from the Fifteenth Through the Twentieth Centuries." Duquesne Law Review 33 (summer).
"Nonfeasance." West's Encyclopedia of American Law. . Encyclopedia.com. (January 17, 2019). https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/nonfeasance
"Nonfeasance." West's Encyclopedia of American Law. . Retrieved January 17, 2019 from Encyclopedia.com: https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/nonfeasance
Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).
Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.
Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:
Modern Language Association
The Chicago Manual of Style
American Psychological Association
- Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
- In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.