Due to an urgent phone call, I had to quickly leave my home and requested my neighbor, who was outside, to put my lawnmower, which was in my front yard, into my garage and to close the garage door. Unfortunately, my neighbor failed to comply with my request. In fact, the lawnmower was stolen, and someone broke into my house because the garage door remained open.

Given these circumstances, I am considering filing a lawsuit against my neighbor for failing to protect my property. Do I have a case?

Homeowners’ Claim

The short answer is no. You do not have a claim against your neighbor. However, since your lawnmower and personal items were stolen, you likely have a claim against your homeowners’ insurance policy for theft. In multiple posts, I have emphasized the importance of promptly notifying an insurance carrier about potential claims. This principle applies to homeowners’ claims as well. You should notify your homeowners’ insurance broker or carrier as soon as possible about the loss. Additionally, you should be prepared to submit a copy of the police report when you reported the thefts.

You would not have a valid claim against the neighbor due to the principle of nonfeasance. This is a well established legal theory going back hundreds of years. Essentially, the rule states that if an actor is guilty of nonfeasance, there is no tort claim against them. However, if an actor is guilty of malfeasance, then there would be a potential tort claim against them.

Tort

Let me define those terms. First a tort is a wrong. It is a civil claim that a person brings against another person or entity that commits either an intentional or negligent act that causes damage. This entire blog has been dedicated to hundreds of different types of claims that are categorized as torts. Almost all of the torts that I have discussed are negligence claims.

Some tort claims could be for intentional acts. For instance, if a person hits another person, that would be an intentional tort of assault and battery. The injured party could sue the aggressor for an intentional tort.

The other terms are nonfeasance and malfeasance. It is an important distinction for your case.

Nonfeasance

Even if your neighbor had actually promised to put your lawnmower away and close your garage door, but did neither, that would be nonfeasance. An unkept gratuitous promise to do an act does not give rise to liability, Thorne v Deas, 4 Johns 84 (NY Sup 1809), and Hunt v Scotia Glenville Central School District, 92 AD2d 680, 460 NYS2d 205 (3d Dept 1983).

Malfeasance

However, if your neighbor promised to put away the lawnmower and close the garage door, but only put the lawnmower in the garage and forgot to close the garage door, then that would be considered malfeasance. One who makes a promise and begins performance is bound to perform according to his promise. Siegel v Spear & Co., 234 NY 479 (1923), and failure to keep the promise makes the person promising liable to anyone relying on the performance.

In Siegel v Spear & Co., 234 NY 479 (1923), the Court found the defendant liable for the loss of the bailed goods. The defendant was liable because the defendant failed to keep its promise which it began to perform. The plaintiff did not pay the defendant to care for their property. The Court found the defendant responsible to insure goods destroyed by fire. The Court in Siegel distinguished Thorne v Deas, 4 Johns 84 (NY Sup 1809), because the plaintiff in Thorne had parted with nothing, given up possession of none of his property, nor had any interest in it.

A Court infers performance from a minor initiating act. So attending a meeting was sufficient to prove the defendant had undertaken to perform a promise. Kirby v Brown, Wheelock, Harris, Vought & Co., 229 AppDiv 155, 241 NYS 255 (1st Dept 1930), reversed on other grounds, 255 NY 274, 174 NE 652 (1931). The act of writing a letter is an initiating act. Condon v Exton-Hall Brokerage & Vessel Agency, 80 Misc 369, 142 NYS 548 (NY City Ct 1913), reversed on other grounds, 83 Misc 130, 144 NYS 760 (AppT 1913).

Good Samaritan

This question is actually a variation of the last post regarding liability of the Good Samaritan who has the best of intentions but poor execution. In this case, the person in trouble is actually asking for help rather than the Good Samaritan acting gratuitously. But the legal result is the same. Once a person begins to help another in trouble, they are obligated to ensure the performance puts the one asking for help in a better position.

Breach of Contract for Non-Performance

If you offered to pay your neighbor to put away your lawnmower and close your garage door, you would have a claim for breach of contract. So, if you made a contract with your neighbor to take care of your house and lawnmower, their failure to fulfill that contract would constitute a breach of that agreement. (This is an entirely different legal theory than a tort.) For instance, in B. L. W. Realty Holding Co. v Socony Mobil Oil Co., 32 AD2d 312, 301 NYS2d 389 (1st Dept 1969), the court affirmed the breach of contract claim. Similarly, in Trans Caribbean Airways, Inc. v Lockheed Aircraft Service-International, Inc., 14 AD2d 749, 220 NYS2d 485 (1st Dept 1961), the court also recognized the breach of contract.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.