A failure to act definition is when a person or party has a duty to perform a certain act but does not end up doing so.

A duty to act, within the scope of personal injury law or tort cases, generally refers to one of two things:

  • People have a duty to act in a manner as to not cause direct harm to others. Should an individual fail to do so, then he or she may be liable for negligence.
  • People are not necessarily obligated to intervene when they see someone else doing harm. Even though someone may say that they will do something, words alone are often not enough to bring on a duty to act.

As humans, we have two obligations towards our fellows: acting in accordance with the law, which is known as statutory duties, and moral duties, which are not legally upheld. Moral duties are considered the act of a good citizen and might include breaking up a fight or reporting a child or animal locked in a hot car. This is also known as a common law duty.

To establish a prima facie case for negligence, there are four elements that must exist:

  • The existence of a legal obligation owed by one party to another
  • Proof of breach of the aforementioned duty
  • Proof that the wronged party (also known as the plaintiff) suffered an injury
  • Evidence that it was the acts of the defendant that caused the plaintiff’s injury

Generally, within the scope of personal injury law, the negligent conduct involves some sort of action, such as a motorist hitting a cyclist or pedestrian with a car. With that said, inaction can also be considered negligent behavior, thus failure to act. An example of this may be if you are a teacher, nurse, social worker, or other vocation that is considered to be a mandated reporter, and you fail to report a case of domestic violence, sexual assault, or child abuse.

Additionally, a business owner may be liable for negligence (failure to act) if he refuses to make repairs to what could reasonably be considered a hazardous work environment, such as faulty elevator or a staircase that is falling apart.

Additional Information

Most criminal cases have two types of elements at play. First, there is mens rea, which means that there was intent to commit a crime. There is then actus rea, which lacks the burden of intent, although a crime was still committed. If you watch “Law & Order,” you may know the difference between homicide and manslaughter; manslaughter generally lacks intent (think a car accident in which someone was killed), making it actus rea. However, homicide is against the law, as is reckless driving.

While moral duties are not necessarily able to be legally upheld, in some cases, laws change to better reflect the morals of society. Examples of this are changes in laws regarding marital rape, meaning that a husband cannot forcibly engage in sexual relations with his wife unless she consents.

In some countries, such as France, there exist Good Samaritan Laws, which may hold you in failure to act, should you, for example, come across a parent hurting their child, and you do nothing to stop it.

As you prepare to review your insurance claim or speak with a personal injury attorney, it is important to understand the specifics involved with failure to act, negligence, statutory duties, and common law duties.


As with most things, there are some exceptions where there may not otherwise be a duty to act. For example, if you come across an injured person, while you are not obligated to assist them, should you begin doing so, then you are obligated to continue helping them or stay with them until medical assistance arrives; you cannot just then abandon the person.

Additionally, if you in some way, encourage someone to commit a crime which injures people in the process, then you may be held responsible for those injuries, even if you were not directly involved in causing them. The Mafia could be a good example of this; if you are a boss who orders a hit, then you can be ultimately held responsible, even though you are not the one who committed the act.

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