Making Things Worse, Failing To Make Things Better

Abstract

This article presents the first extensive analysis of a question in American tort law that has remained unresolved for nearly a century. When someone voluntarily attempts to protect another person from a pre-existing, independent risk of harm, should they be held liable for negligently failing to make the situation better or should they be held liable only if they negligently make the situation worse? Different courts have answered this question differently. Significantly, the Second and Third Restatements of Torts both expressly decline to take a position, leaving it an open question.

I argue that the question should be settled as follows: except in narrow and unusual circumstances involving emergency situations, it should be a necessary condition of liability for negligence in a voluntary undertaking that the actor’s conduct have made the situation worse by increasing the risk of harm to the victim beyond what it would have been absent the undertaking. Negligent conduct that does not increase the risk to another person—which I dub "non-endangering negligence"—generally should not give rise to liability unless nonfeasance (complete inaction) would have done so in the same circumstances. This follows from a principle lying at the heart of the common law of torts: tort liability generally requires that the defendant have engaged in affirmative conduct that made the world more dangerous to the plaintiff than it would have been in the defendant’s absence.

Examining the question through the theoretical lenses of incentive-based tort theory and wrongs-based tort theory, I argue that non-endangering negligence in a voluntary undertaking should give rise to liability only in an emergency situation where a volunteer rescuer engages in bad-faith misconduct after taking charge of the imperiled person. In such circumstances, wrongs-based considerations weigh so heavily in favor of liability as to overcome tort law’s strong presumption against imposing negligence liability on a defendant who has not increased the danger to the plaintiff beyond what it would have been in the defendant’s absence.

Keywords: voluntary undertakings, affirmative duties, negligence, path dependency, corrective justice, civil recourse theory

JEL Classification: K13