Case Brief Wiki


The defendant was a waterworks company that contracted with the city to furnish water to fire hydrants for $42.50 per year per hydrant. The plaintiff was the owner of a warehouse that burnt down because the defendant failed to provide enough water from their hydrant to put out the fire.


  1. Did the defendant's duty to the city extend to the plaintiff as an individual member of the public?
  2. Is the defendant liable for the damages resulting as a breach of contract?


Decision for the defendant.


Cardozo held that the plaintiff could not recover in contract because they were not a party to the contract between the defendant and the city. Further, they could not recover in tort because the defendant's failure to provide water was merely nonfeasance. He said that the question in nonfeasance is always whether the defendant has advanced to such a point through their actions that harm will invariably result unless they take action to prevent it. To extend liability to the defendant here would be to create indeterminate liability, which is outside of the scope of harm done in this case.


If a defendant has acted in such a way that their inaction will invariably result in harm, then nonfeasance does not apply, however, if they did not bring on the harm then their inaction does not create liability as there was no duty to act.


Gregory, in Gratuitous Undertakings and the Duty of Care (1951), states that Cardozo's reasoning is based on the idea that fire insurance companies, and not water companies, are the right institutions to bear the losses created by fire. A decision for Moch would merely be a decision for their fire insurance company against the water company.