[Note: This posting is a continuation of a report on
the development of a civics unit of study.
This unit is directing students to formulate informed positions on a
governmental topic: ground rules
overseeing tort law. It is being
developed in real time. Writer wants to
identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
Nowhere, perhaps, is
there a greater gap between the value orientation one can ascribe to a federalist
perspective – and one can say most moral systems – than exists between legal
duty and moral duty. Usually, the
example given to illustrate this point is one that describes a flailing baby in
a puddle that has only a nearby person to save him/her. Something the nearby person does not do. But a more common, everyday example might be
more helpful.
Let’s say a person is driving down a
deserted street. To make the point more poignant,
the person is a good-sized man in his thirties.
He looks left, he sees an elderly man climbing the steps of a church
when the old man clutches his chest and falls.
The driver, who could easily pull over to where the old man lies and
provide him some help, doesn’t. He
merely keeps driving.
As it turns out, the old man suffers a
heart attack and dies some twenty minutes later.
He could have been saved if someone – the driver, for example – was
there to assist him by applying CPR or using a cell phone and calling 911. No other person was there to do that. So, he died.
Later, church officials look at what a
security camera video, a camera situated outside the church, reveals. It shows the old man falling, grasping his
chest, and it also picks up the driver who ignored the emergency. Later, the old man’s daughter views the video
and is incensed with the obvious indifference of the man driving and looking at
her father falling. Can she sue or file
a criminal complaint against this driver?
Can she, in other words, claim the driver had a duty toward her father?
Just to round off the example, the
driver is driving a rare antique car and with a little investigation, he can be
easily identified. What trouble is he
in? None. Common law does not impose a duty. The saying or standard common law provides in
such cases can be summarized as follows:
“no duty to a stranger.” Of
course, this is a highly non-federalist point of view.
And
that goes for a person who ignores a flailing baby in a puddle. In either case, the generally accepted moral
duty does not translate to mean a legal duty.
Among the conditions a plaintiff in a tort action needs to establish is
a defendant’s legal duty toward the plaintiff.
And as these examples demonstrate, just being able to help someone is
not enough. This posting addresses what is enough – or needed – for a tort claim
to have a chance in court.
And this demand brings certain
concepts or principles into play. While
one does not owe a legal duty to a stranger, there are situations or
relationships that do. One owes, in a
few words, the duty to reasonably not be the cause of anyone else’s harm.
Another way to see it, one needs to be reasonable – that is, not
negligent – in how one conducts his/her behavior in relation to others. The key concept is reasonableness.
Yet, if one looks at this whole area
of concern, there is that of the victim or the alleged victim. What does a plaintiff need to establish to
make a viable claim? Three elements
exist. As Edward K. Cheng puts it:
There
are other three elements of a tort claim … briefly, they are: Breach of Duty – whether the defendant’s
behavior failed to live up to that standard of care; Causation – whether that
failure or breach of duty caused the plaintiff’s harm; and Damages – whether
the law recognizes the harm that occurred to the plaintiff, how we measure it,
and how the defendant can compensate for it.[2]
This will be fleshed
out further in upcoming postings, but here is a good point to bring up the
second tension a previous posting mentioned:
misfeasance vs. nonfeasance.[3]
The next posting will have more on
this tension. Here, though, is a quick summary
of each. When one party does something
that harms another, that is either malfeasance or misfeasance. Under what has already been described, such
behavior is subject to a legitimate tort claim – in the case of malfeasance, a
criminal claim as well. But if a person
does not do something that would prevent harm, that is nonfeasance. The passerby leaving the baby in a puddle or
the drive-by witness to a heart attack come to mind.
The
law ascribes different levels of duty among these types of feasance. When one performs an act, that’s a
feasance. The Free Dictionary by Farlex
goes on and defines the three types just identified:
- · When one commissions an illegal act, he/she commits a malfeasance.
- · When he/she performs an act with inadequate or improper care of a lawful act, he/she commits a misfeasance.
- · And last, when he/she fails to perform an act – neglects a duty (not necessarily a legal one) – he/she commits a nonfeasance.[4]
Determining which type
applies in a given situation is an initial concern a court or a lawyer needs to
consider. In terms of tort law, one
needs a good handle on the meaning and implications of misfeasance and
nonfeasance.
Most tort cases arise from
incidences of misfeasance. They do not
arise from nonfeasance. As for
malfeasance, those cases are mostly left for criminal law to take care of, but there
are cases where torts emanate from malfeasance acts as well. Next posting will continue reviewing these
different categories
[1] Edward K.
Cheng, “Torts,” Law School for Everyone
– a transcript book (Chantilly, VA: The
Teaching Company/The Great Courses, 2017), 230-445.
[2] Ibid., 256-257.
[3] In the previous posting, the blog misidentified this
tension as malfeasance vs. nonfeasance.
This misidentification is cleared-up in this posting.
[4] “Feasance,” The Free Dictionary by Farlex, n. d.,
accessed September 24, 2018, https://legal-dictionary.thefreedictionary.com/Feasance
.
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