Torts Commons^™

Affirmative Duty And Constitutional Tort, Michael L. Wells, Thomas A. Eaton

Scholarly Works

The Constitution ordinarily places only negative restrictions on government and does not require affirmative acts to assist individuals. The statutory vehicle for most constitutional tort litigation, 42 U.S.C. section 1983, echoes this constitutional principle. It extends liability to "[e]very person who ... [under color of state law] subjects, or causes to be subjected, any ... person" to the deprivation of federal rights, and makes no provision for a duty on governmental defendants to stop others from harming the plaintiff.

For some courts this principle disposes of affirmative duty claims forthwith. A noteworthy example is the recent seventh circuit case Bowers …