Tort law is an area of law that deals with civil court proceedings that provide relief for victims that have suffered harm from the wrongful acts of others. A tortious act is any misconduct or negligence that results in harm to another person or property. In terms of a resulting personal injury lawsuit, the person that suffers the harm is referred to as the plaintiff, while the defendant is referred to as the tortfeasor, or person who caused the harm.
In order for a plaintiff to win their case, their legal team has to demonstrate three elements: 1) they must establish that the tortfeasor had a duty of care to the victim, 2) they must establish that the tortfeasor breached that duty of care, and 3) they must prove that the breach of care caused the victims’ injuries and losses.
Within the areas of tort law, there are three terms that describe inaction, negligence, and criminal conduct in a personal injury case. These terms are known as “nonfeasance“, “misfeasance“, and “malfeasance.” Each term describes a different type of wrongdoing that causes harm to another person. Continue reading to learn the definitions of these personal injury terms, and some helpful examples of each.
Nonfeasance is a term used to describe “a deliberate or neglectful failure to act” where action is required, that directly results in or allows another person to be harmed or injured. A person is liable or guilty of nonfeasance under three circumstances: 1) the person had a duty of care to the victim, 2) they failed to act on their duty of care, or 3) the act resulted in the victim’s injuries. Just one of the above-mentioned circumstances is enough to be held liable for a person’s harm. An example of nonfeasance would be:
Amanda is a lifeguard at the local swimming pool. While doing her job, she notices an elderly person drowning. She fails to act and the elderly person suffers harm as a result. She can be held legally liable for the victim’s death or injuries since she had a duty of care to do her job as a lifeguard and rescue troubled swimmers.
Misfeasance is a little different from nonfeasance. While nonfeasance refers to a complete “failure” to act, misfeasance is a term used to describe a lawful act that is improperly performed, either by negligence or intention, causing harm to another person. An example of misfeasance could be:
Tony is a private chef. He cooks a risky dish of puffer fish for his clients. He is in a rush so he fails to properly prepare the venomous fish to industry standards, which results in poisoning his clients. Although the act of cooking puffer fish is legal, the fact that he improperly prepared the delicacy and served it to his clients is negligent. He had a duty of care to make sure the food was safe to eat, and breached that duty.
Malfeasance is easier to understand compared to the other two tort law terms. It describes an intentional illegal action or wrongdoing that causes another person harm. An example of malfeasance in terms of personal injury law could be:
Caroline and her friends do not like the new girl at their high school. They harass her, isolate her, and bully her excessively, urging her to end her life. As a result, the new girl attempts suicide, causing her serious injury. In this case, Caroline and the other teenage girls could be guilty of malfeasance, since their wrongful actions of harassment caused the new student harm.