One of the most contentious debates in tort law arises out of the distinction between misfeasance and nonfeasance, between actively causing harm to another on the one hand, and passively allowing harm to fall upon him on the other. In the first case, liability has traditionally been imposed on those whose negligence proximately causes harm to another. Examples range from such egregious behavior as drag racing in automobiles, to more innocent conduct, such as failing to organize a fishing contest so as to aviod creating an unreasonable risk of harm. In such cases little controversy is involved in imposing liability upon the negligent when their unreasonable conduct harms others.

But in the case of nonfeasance, there has been a valiant resistance to imposing liability. One of the many classic examples of nonfeasance involves a man strolling down a dock late a night, who hears a man calling for help from the water below. Peering over the edge, he sees a man struggling to stay above water, coming perilously close to drowning. At his feet is a length of rope, which he quickly deduces is more than sufficient to reach the ailing gentleman. Without provocation, however, he simply turns about, and continues on his way. The man below drowns.

Many scholars have attempted to argue that the man who fails to rescue another should be liable for the harm suffered. Interestingly, though, few (if any) courts have gone ahead and imposed liability in this situation. One of the more recent cases which flatly refused to impose liability in the just the type of scenario outlined above is Yania v. Bigan, 155 A.2d 343 (Penn. 1959). The facts are somewhat similar to the above example, only even less sympathetic. Yania and Bigan were business associates in the strip-mining business. One day they met along with another party on Bigan’s land, near a large trench full of water roughly 10 feet deep. What followed was some type of contest of machismo, ending in Yania proving his manliness by jumping into the trench of water and drowning, while Bigan stood by.

Yania’s wife brought suit against Bigan on behalf of herself and their three children. The court summarized the case against Bigan as follows: “Bigan stands charged with three-fold negligence: (1) by urging, enticing, taunting and inveigling Yania to jump into the water; (2) by failing to warn Yania of a dangerous condition on the land, i.e., the cut wherein lay 8 to 10 feet of water; (3) by failing to go to Yania’s rescue after he had jumped into the water,” (Id. at 345). Interestingly, the court had little sympathy:

Appellant initially contends that Yania’s descent from the high embankment into the water and the resulting death were caused “entirely” by the spoken words and blandishments of Bigan delivered at a distance from Yania. The complaint does not allege that Yania slipped or that he was pushed or that Bigan made any physical impact upon Yania. On the contrary, the only inference deducible from the facts alleged in the complaint is that Bigan, by the employment of cajolery and inveiglement, caused such a mental impact on Yania that the latter was deprived of his volition and freedom of choice and placed under a compulsion to jump into the water. Had Yania been a child of tender years or a person mentally deficient then it is conceivable that taunting and enticement could constitute actionable negligence if it resulted in harm. However to contend that such conduct directed to an adult in full possession of all his mental faculties constitutes actionable negligence is not only without precedent but completely without merit.

Id. The court noted that Bigan might have been liable to Yania for failing to warn of a dangerous condition on the land; however, the court dismisses this potential by averring that Bigan pointed the ditch out to Yania, and any danger was obviously apparent to both as owners/operators of coal strip-mines.

The court ends the case with a classic formulation of the “no duty to rescue” rule:

Lastly, it is urged that Bigan failed to take the necessary steps to rescue Yania from the water. The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing Yania in the perilous position: Restatement, Torts, § 314. Cf: Restatement, Torts, § 322. The language of this Court in Brown v. French, 104 Pa. 604, 607, 608, is apt: “If it appeared that the deceased, by his own carelessness, contributed in any degree to the accident which caused the loss of his life, the defendants ought not to have been held to answer for the consequences resulting from that accident. … He voluntarily placed himself in the way of danger, and his death was the result of his own act. … That his undertaking was an exceedingly reckless and dangerous one, the event proves, but there was no one to blame for it but himself. He had the right to try the experiment, obviously dangerous as it was, but then also upon him rested the consequences of that experiment, and upon no one else; he may have been, and probably was, ignorant of the risk which he was taking upon himself, or knowing it, and trusting to his own skill, he may have regarded it as easily superable. But in either case, the result of his ignorance, or of his mistake, must rest with himself – and cannot be charged to the defendants”. The complaint does not aver any facts which impose upon Bigan legal responsibility for placing Yania in the dangerous position in the water and, absent such legal responsibility, the law imposes on Bigan no duty of rescue.

Recognizing that the deceased Yania is entitled to the benefit of the presumption that he was exercising due care and extending to appellant the benefit of every well pleaded fact in this complaint and the fair inferences arising therefrom, yet we can reach but one conclusion: that Yania, a reasonable and prudent adult in full possession of all his mental faculties, undertook to perform an act which he knew or should have known was attended with more or less peril and it was the performance of that act and not any conduct upon Bigan’s part which caused his unfortunate death.

Id. at 346. I think the court ultimately reached the right outcome here, though a persuasive case could be made that inducing someone to take perilous actions and then failing to assist them should be a species of negligence. But that is the subject of another post, which perhaps I’ll address at a later date.

Some of the interesting consequences of the misfeasance/nonfeasance dichotomy are the various exceptions to the “no duty to rescue” rule that courts have created. I plan on discussing some of these exceptions in future posts.