If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward. The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good.
A large fire occurred in which plaintiff owner's warehouse was substantially damaged. During the fire, defendant water company ran out of supplies, and plaintiff contended that such a mistake resulted in increased damages to his building. Accordingly, litigation ensued where plaintiff sought negligence damages on a theory that defendant breached its duty of care within the presiding city. At the trial level, defendant's motion to dismiss was denied. On appeal, the intermediate appellate court reversed, holding that a duty existed between defendant and the city, but plaintiff had no privity in the relationship.
Should the water company be liable for damages from the fire?
The court affirmed the judgment from the intermediate appellate court on the grounds that under N.Y. Transp. Corp. Law § 81, defendant water company was never statutorily intended to be responsible for incidental damages arising from its obligation to supply a city with water during fires.