Also known as:omission to act · omission · omissions · failure to act · omission liability
Written by attorneys · grounded in primary & secondary sources — see below
Conduct consisting of a failure to perform an act that a person is physically capable of performing. Liability for an offense may rest on such an omission only when the law defining the offense expressly makes the omission sufficient or when a special relationship, statute, contract, or undertaking creates a duty to act.
Sources & Authorities
How it applies
Common Examples
6
Principal Commits Offense by Omission
Otis Olsen, the sole owner of a licensed daycare, learns that a child in his care has suffered a severe allergic reaction but chooses not to call emergency services or administer an EpiPen even though both are immediately available. When the child dies, prosecutors charge Otis as a principal in the first degree. Because the criminal statute defines the offense to include the failure to summon aid, Otis's omission supplies the conduct element required for principal liability.
Unsigned Pleading Stricken for Omission
Olive Okafor files a complaint in federal court but forgets to sign it or include her contact information. The opposing party moves to strike. The court orders the paper stricken because the signature omission was not promptly corrected after notice, treating the failure to sign as a disqualifying omission under the filing rules.
Select any source to read its text and confirm it supports the definition.
Cases
Statutes
Federal Rules
Uniform Acts
Model Codes
Common Law
Restatements
No Liability Without Voluntary Act or Duty
Otto Osman watches a neighbor's house burn but takes no steps to alert the fire department even though he could easily do so. Charged with arson by omission, Otto is acquitted because the statute does not expressly make the failure to report sufficient for liability and no special relationship or undertaking created a duty to act.
Mistaken Party's Omission Does Not Bar Relief
Oakley Osei sells land to Oliver Okeke under a mutual mistake about the acreage. Oakley failed to discover the error before signing because he did not review the survey. When Oliver seeks reformation, the court grants relief because Oakley's omission in discovering the facts does not amount to bad faith or a departure from reasonable standards of fair dealing.
Partnership Liable for General Partner's Omission
Orion Technologies, the general partner of a limited partnership, fails to maintain required safety equipment on partnership trucks. When a third party is injured, the limited partnership is held liable for the resulting damages because the general partner's omission occurred in the ordinary course of partnership activities.
Partnership Liable for Partner's Omission
Oasis Resorts, a general partnership operating a hotel, has a partner who neglects to repair a known hazard on partnership property. A guest is injured. The partnership is held liable for the harm because the partner's omission took place in the ordinary course of partnership business.
Common questions
Frequently Asked
4
When does an omission create criminal liability?+
An omission creates criminal liability only when the statute expressly makes the failure to act sufficient or when a duty to act arises from a special relationship, statute, contract, or voluntary undertaking. Without one of these sources of duty, mere inaction does not satisfy the conduct element of an offense.
Supporting sources
Does a shared duty mean each person who omits to act is fully liable?+
Yes. When two or more persons share a common duty and each fails to perform it, resulting in indivisible harm, each is subject to liability for the entire harm. Contribution questions between them are separate from the plaintiff's recovery.
Supporting sources
Can failure to remove defamatory content constitute publication by omission?+
Yes. A party who controls a display and knowingly allows defamatory material to remain visible after notice engages in a continuing publication. The intentional failure to remove the content satisfies the publication element.
Supporting sources
Does a gratuitous agent's omission create liability?+
A gratuitous agent is held only to the standard of care expected of a non-agent performing a similar unpaid task. An omission that would breach a paid agent's duty may not breach the lower standard applied to a gratuitous agent.
Supporting sources
505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992)Constitutional Law
…for his list of outcasts. Even more shocking than The Chief Justice's cramped notion of individual liberty is his complete omission of any discussion of the effects that compelled childbirth and motherhood have on women's lives. The only expression of concern with women's health is purely instrumental—for The Chief…