Omission Upon Legal Duty

Model Penal Code § 2.01(3): liability for commission of an offense may not be based on an omission unaccompanied by action unless:
- statute defines the omission as sufficient for an offense; or
- a duty to perform the committed act is otherwise imposed by law.
Courts will generally impose criminal liability for breach of legal duty where:
- statute imposes a duty of care for another;
- one has a status relationship to another;
  - Ex 1: Parent to child
  - Ex 2: Caretaker to otherwise dependent
  - See State v. Williquette, 385 N.W.2d 145 (1986).
- one has assumed a contractual duty to care for another; or
  - Ex: Nursing home nurse to a resident.
  - See Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962).
- one has voluntarily taken over/assumed care of another and so secluded the help person as to prevent others from rendering aid.
  - See Commonwealth v. Pestinikas, 617 A.2d 1339 (1992).
A moral duty to act is insufficient to create a legal duty to act.
On parent/child or child/parent duties:
- Parent generally has a duty to care for their child
- Child generally does NOT have a duty to care for their parent