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58 Yale L. J. 1272 (1948-1949)
Affirmative Duties in Tort

handle is hein.journals/ylr58 and id is 1294 raw text is: AFFIRMATIVE DUTIES IN TORT HAROLD F. McNIECE JOHN V. THORNTON$ FORTY years ago Bohlen expressed the view that There is no dis- tinction more deeply rooted in the common law and more fundamental than that between misfeasance and non-feasance, between active mis- conduct working positive injury to others and passive inaction, a fail- ure to take positive steps to benefit cthers, or to protect them from harm not created by any wrongful act of the defendant. 1 The line between active misconduct and passive inaction is not easily drawn. The range of human conduct theoretically susceptible of tort consequence runs from the zenith of clearly affirmative mis- conduct (misfeasance) to the nadir of clear inaction (nonfeasance), but there exists an area of shadow-land where misfeasance and non- feasance coalesce. The existence of this shadow-land is well illustrated by Bohlen's famous example.2 For one to use a chattel known to be defective in such a way as to create a serious risk of harm to others is palpably a misfeasance. On the other hand a failure to take steps to provide protection for people who come on one's premises without in- vitation and without permission is patently passive inaction, a non- feasance. But between those extreme cases consider a median situation where one uses a chattel for a particular purpose without having ascer- tained by inspection or othenvise whether it is fit for that purpose, with knowledge that the article, if defective, will create a serious risk of harm to others. Here there exists an admixture of nonfeasance and misfeasance. There is action-the utilization of the chattel-and there is nonfeasance-the failure to perform an inspection to ascertain whether or not the chattel was defective. Many tort problems fall into the so-called pseudo-nonfeasance category' For example, a plaintiff is run down by an automobile driven by defendant by reason of the fact that defendant fails to sound his horn and fails to apply his brakes. Superficial analysis may suggest that this is a nonfeasance-that is, that the plaintiff is complaining of the defendant's omission to sound the horn and apply the brakes. In truth, however, the plaintiff is complaining of nothing of the sort. The gravamen of his cause of action is the anti-social act of the defend- ant in propelling the vehicle forward so as to run the plaintiff down, t Assistant Professor of Law, St. John's University School of Law. t Associate in Law, Columbia University School of Law. 1. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. ot PA. L. REv. 217, 219 (1908) (reprinted in BoHEN, STUDIES IN THE LAW ov ToRTS 291, 293 (1926)). 2. Id. at 220 n.6. 3. ELDREDGE, MODERN Toar PROBLEmS 14 (1941).

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