"Wright,
Richard" writes:
I never have liked the term "misfeasance," which literally
means mis-doing and implies fault, but it is the term usually
used to distinguish between acting or failing to act ("doing"
or "not doing") in a way that creates a foreseeable
risk to another (which may or may not be faulty), and on the other
hand failing to act to protect another from a risk created by
someone else ("nonfeasance"). That is how I see the
basic distinction between "misfeasance" and "nonfeasance."
I think it is the basic distinction between situations that are
viewed as morally quite different -- at least under equal-freedom,
rights-based theories of morality and law, rather than utilitarian
efficiency theories. In many "nonfeasance" situations,
as well as some of the so-called "no duty" or "limited
duty" situations involving "misfeasance" (e.g.,
land owners' duties toward trespassers and licensees), it is not
the case, as I think Steve implied, that one has no duty to act
reasonably, but rather that the non-duty or limited-duty describes
what is deemed reasonable care in those types of situations. I
have written about this in several articles.
Labeling a situation or activity as involving misfeasance in this
sense does not mean, as John seems to assume below, that it is
faulty or wrongful per se. It merely means that one has a general
duty to take reasonable care in the situation or activity, given
the foreseeable risks of physical injury to others that one is
creating by one's action or inaction. Thus, I agree that it is
utterly implausible to say, in John's movie marathon hypothetical,
that one has a duty to refrain from hosting the marathon given
the foreseeable risks of physical harm to third persons (or the
participants themselves). Rather, one has a duty to take reasonable
care in hosting the marathon given the foreseeable risks of physical
injury (granting, arguendo, that hosting such a marathon would
create a foreseeable risk of exhaustion and bleariness such as
to impair one's driving ability, which is not clear to me -- unless
the participants had too little sleep the night before or alcohol
was being consumed! But I am a night owl.)
The
same holds for the social host of a party where alcohol is served.
As with driving, the foreseeable risks to others give rise to
a duty to take reasonable care in one's conduct of the party --
as John states. Driving is also a socially acceptable activity.
But one who drives -- or allows another to drive one's car --
has a duty to take reasonable care given the foreseeable risks
of physical injury to others. IMHO, John continues to confuse
breach with duty, and to want to have the breach issue treated
as a duty issue. It is precisely this confusion that the drafters
of the Restatement Third have tried to avoid (I hope
this won't be a red flag for John, who rightly argued that the
drafters initially went overboard by essentially eliminating the
duty element).
The
same holds for the person who leaves guns, dynamite, axes, gasoline,
unicycles, etc. laying around. For some of these activities, the
foreseeable risks may be so slight that no care at all is required.
John's unicycle example seems to me to be such a case. For others,
as the foreseeable risk increases, more precautions are required.
