Duty of care
Encyclopedia
In tort law
, a duty of care is a legal
obligation
imposed on an individual requiring that they adhere to a standard
of reasonable
care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence
. The claimant must be able to show
a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law
between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law
).
Duty of care may be considered a formalization of the social contract
, the implicit responsibilities held by individuals towards others within society
. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence
of common law
.
(1842). In the early 20th century, judges began to recognize that the cold realities of the Second Industrial Revolution
(in which end users were frequently several parties removed from the original manufacturer) implied that enforcing the privity requirement against hapless consumers had harsh results in many product liability
cases. The idea of a general duty of care that runs to all who could be foreseeably affected by one's conduct (accompanied by the demolishing of the privity barrier) first appeared in the landmark U.S. case of MacPherson v. Buick Motor Co.
(1916) and was imported into UK law by another landmark case, Donoghue v Stevenson [1932]. Both MacPherson and Donoghue were product liability cases.
, it is important to understand that a duty can be still found in situations where plaintiffs and defendants may be separated by vast distances of space and time.
For instance, an engineer or construction company involved in erecting a building may be reasonably responsible to tenants inhabiting the building many years in the future. This point is illustrated by the decision of the South Carolina Supreme Court
in Terlinde v. Neely 275 S.C. 395, 271 S.E.2d 768 (1980), later cited by the Supreme Court of Canada
in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. [1995] 1 S.C.R. 85:
jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else's problems, so there must be some reasonable limit to the duty of care. The problem is where to set that limit.
was found in the judgments of Caparo Industries plc v Dickman, in which the House of Lords
set out the following three-part test:
s is a separate sovereign
free to develop its own tort law under the Tenth Amendment
, and because Erie Railroad Co. v. Tompkins
(1938) ruled that there is no general federal common law
(thus implying no general federal tort law), there are several tests for finding a duty of care in United States tort law
.
and Massachusetts
, the only test is whether the harm to the plaintiff from the defendant's actions was foreseeable.
The Supreme Court of California
, in a famous majority opinion
by Justice David Eagleson
, sharply criticized the idea that foreseeability, standing alone, constitutes an adequate basis on which to rest the duty of care: "Experience has shown that . . . there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages."
has developed a complex balancing test
consisting of multiple factors which must be carefully weighed against one another to determine whether a duty of care exists in a negligence action. The underlying facts are universalized
and analyzed in the larger context of general public policy. The original factors as stated in 1968 were as follows:
A 1997 case added to this:
Some states simply copied California's factors but modified them, like Michigan
(which deleted the insurance factor and never picked up the social utility factor), while others developed different lists of factors, such as this one from Tennessee
:
s will be held to reasonable standards for members of their profession, rather than those of the general public, in negligence actions for medical malpractice
.
In turn, once the appropriate standard has been found, the breach is proven when the plaintiff shows that the defendant's conduct fell below or did not reach the relevant standard of reasonable care.
However, it is possible that the defendant took every possible precaution and exceeded what would have been done by any reasonable person, yet the plaintiff was injured. If that is the case, the plaintiff cannot recover in negligence. This is the key difference between negligence and strict liability
; if strict liability attaches to the defendant's conduct, then the plaintiff can recover under that theory regardless of whatever precautions were taken by the defendant.
stated:
, licensee
, or invitee
. This rule was eventually abolished in some common law jurisdictions. For example, England enacted the Occupiers Liability Act 1957. Similarly, in the 1968 landmark case of Rowland v. Christian
, the Supreme Court of California
replaced the old classifications with a general duty of care to all persons on one's land, regardless of their status. After several highly-publicized and controversial cases, the California Legislature enacted a statute in 1985 that partially restored immunity to landowners from some types of lawsuits from trespassers.
In the Republic of Ireland
, under the Occupiers' Liability Act, 1995, the duty of care to trespassers, visitors and "recreational users" can be restricted by the occupier; provided reasonable notice is given, for which a prominent notice at the usual entrance to the premises usually suffices.
, after sufficient investigation, and for acceptable reasons. Unless this presumption is overcome, courts abstain from second-guessing well-meaning business decisions even when they are flops. This is a risk that shareholders take when they make a corporate investment."
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
, a duty of care is a legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
obligation
Obligation
An obligation is a requirement to take some course of action, whether legal or moral. There are also obligations in other normative contexts, such as obligations of etiquette, social obligations, and possibly...
imposed on an individual requiring that they adhere to a standard
Standard of care
In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care.The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually...
of reasonable
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
. The claimant must be able to show
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law
Operation of law
The phrase "by operation of law" is a legal term that indicates that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, if a person dies without a will, his heirs are determined by operation...
between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
).
Duty of care may be considered a formalization of the social contract
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
, the implicit responsibilities held by individuals towards others within society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
Development of the general duty of care
At common law, duties were formerly limited to those with whom one was in privity one way or another, as exemplified by cases like Winterbottom v. WrightWinterbottom v. Wright
Winterbottom v Wright 10 M&W 109 was an important case in English common law responsible for constraining the law's stance on negligence in the nineteenth century.-Facts:...
(1842). In the early 20th century, judges began to recognize that the cold realities of the Second Industrial Revolution
Second Industrial Revolution
The Second Industrial Revolution, also known as the Technological Revolution, was a phase of the larger Industrial Revolution corresponding to the latter half of the 19th century until World War I...
(in which end users were frequently several parties removed from the original manufacturer) implied that enforcing the privity requirement against hapless consumers had harsh results in many product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
cases. The idea of a general duty of care that runs to all who could be foreseeably affected by one's conduct (accompanied by the demolishing of the privity barrier) first appeared in the landmark U.S. case of MacPherson v. Buick Motor Co.
MacPherson v. Buick Motor Co.
MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 is a famous New York Court of Appeals opinion by Judge Benjamin N. Cardozo which removed the requirement of privity of contract for duty in negligence actions.-Facts:...
(1916) and was imported into UK law by another landmark case, Donoghue v Stevenson [1932]. Both MacPherson and Donoghue were product liability cases.
No physical or chronological proximity required
Although the duty of care is easiest to understand in contexts like simple blunt traumaBlunt trauma
In medical terminology, blunt trauma, blunt injury, non-penetrating trauma or blunt force trauma refers to a type of physical trauma caused to a body part, either by impact, injury or physical attack; the latter usually being referred to as blunt force trauma...
, it is important to understand that a duty can be still found in situations where plaintiffs and defendants may be separated by vast distances of space and time.
For instance, an engineer or construction company involved in erecting a building may be reasonably responsible to tenants inhabiting the building many years in the future. This point is illustrated by the decision of the South Carolina Supreme Court
South Carolina Supreme Court
The South Carolina Supreme Court is the highest court in the U.S. state of South Carolina. The court is composed of a Chief Justice and four Associate Justices.-Selection of Justices:...
in Terlinde v. Neely 275 S.C. 395, 271 S.E.2d 768 (1980), later cited by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. [1995] 1 S.C.R. 85:
General tests for imposing a duty of care
Although the idea of a general duty of care is now widely accepted, there are significant differences among the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions concerning the specific circumstances under which that duty of care exists. Obviously, courts cannot impose unlimited liability and hold everyone liable for everyone else's problems, so there must be some reasonable limit to the duty of care. The problem is where to set that limit.
United Kingdom
The leading judicial test for a duty of care in the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
was found in the judgments of Caparo Industries plc v Dickman, in which the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
set out the following three-part test:
- Harm must be a "reasonably foreseeable" result of the defendant's conduct;
- A relationship of "proximity" between the defendant and the claimant;
- It must be "fair, just and reasonable" to impose liability.
United States
Because each of the 50 U.S. stateU.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s is a separate sovereign
Sovereign
A sovereign is the supreme lawmaking authority within its jurisdiction.Sovereign may also refer to:*Monarch, the sovereign of a monarchy*Sovereign Bank, banking institution in the United States*Sovereign...
free to develop its own tort law under the Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
, and because Erie Railroad Co. v. Tompkins
Erie Railroad Co. v. Tompkins
Erie Railroad Co. v. Tompkins, 304 U.S. 64 , was a decision by the Supreme Court of the United States in which the Court held that federal courts did not have the judicial power to create general federal common law when hearing state law claims under diversity jurisdiction...
(1938) ruled that there is no general federal common law
Federal common law
Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states...
(thus implying no general federal tort law), there are several tests for finding a duty of care in United States tort law
United States tort law
This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes...
.
Foreseeability test
In many states, like FloridaFlorida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
and Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
, the only test is whether the harm to the plaintiff from the defendant's actions was foreseeable.
The Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
, in a famous majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
by Justice David Eagleson
David Eagleson
David N. Eagleson served as an Associate Justice of the Supreme Court of California from 1987 to 1991. He practiced law in Long Beach, California for 20 years...
, sharply criticized the idea that foreseeability, standing alone, constitutes an adequate basis on which to rest the duty of care: "Experience has shown that . . . there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages."
Multi-factor test
CaliforniaCalifornia
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
has developed a complex balancing test
Balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow...
consisting of multiple factors which must be carefully weighed against one another to determine whether a duty of care exists in a negligence action. The underlying facts are universalized
Universalizability
The concept of universalizability was set out by the 18th-century German philosopher Immanuel Kant as part of his work Groundwork of the Metaphysics of Morals. It is part of the first formulation of his categorical imperative, which states that the only morally acceptable maxims of our actions are...
and analyzed in the larger context of general public policy. The original factors as stated in 1968 were as follows:
- the foreseeability of harm to the injured party;
- the degree of certainty he or she suffered injury;
- the closeness of the connection between the defendant’s conduct and the injury suffered;
- the moral blame attached to the defendant’s conduct;
- the policy of preventing future harm;
- the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach;
- and the availability, cost, and prevalence of insurance for the risk involved.
A 1997 case added to this:
- the social utility of the defendant's conduct from which the injury arose.
Some states simply copied California's factors but modified them, like Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
(which deleted the insurance factor and never picked up the social utility factor), while others developed different lists of factors, such as this one from Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
:
- the foreseeability of the harm or injury;
- the possible magnitude of the potential harm or injury;
- the importance or social value of the activity engaged in by the defendant;
- the usefulness of the conduct to the defendant;
- the feasibility of alternative conduct;
- the costs and burdens associated with the alternative conduct;
- the relative usefulness of the alternative conduct;
- and the relative safety of the alternative conduct.
The standard by which the duty is measured
Once a duty exists, the plaintiff must show that the defendant breached it. This is generally treated as the second element of negligence in the United States. Breach involves testing the defendant's actions against the standard of a reasonable person, which varies depending on the facts of the case. For example, physicianPhysician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
s will be held to reasonable standards for members of their profession, rather than those of the general public, in negligence actions for medical malpractice
Medical malpractice
Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and...
.
In turn, once the appropriate standard has been found, the breach is proven when the plaintiff shows that the defendant's conduct fell below or did not reach the relevant standard of reasonable care.
However, it is possible that the defendant took every possible precaution and exceeded what would have been done by any reasonable person, yet the plaintiff was injured. If that is the case, the plaintiff cannot recover in negligence. This is the key difference between negligence and strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
; if strict liability attaches to the defendant's conduct, then the plaintiff can recover under that theory regardless of whatever precautions were taken by the defendant.
Products
As noted above, product liability was the context in which the general duty of care first developed. Manufacturers owe a duty of care to consumers who ultimately purchase and use the products. In the case of Donoghue v Stevenson [1932] AC 562 of the House of Lords, Lord AtkinJames Atkin, Baron Atkin
James Richard Atkin, Baron Atkin was a lawyer and judge of Australian-Welsh origin, who practised in England and Wales...
stated:
Land
At common law, in the case of landowners, the extent of their duty of care to those who came on their premises varied depending on whether a person was classified as a trespasserTrespasser
In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional...
, licensee
Licensee
A licensee is someone who has been granted a licence.- Tort law :The term is used in the USA law of torts to describe a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter...
, or invitee
Invitee
In the law of torts, an invitee is a person who is invited to land by the possessor of the land as a member of the public or one who is invited to the land for the purpose of business dealings with the possessor of the land...
. This rule was eventually abolished in some common law jurisdictions. For example, England enacted the Occupiers Liability Act 1957. Similarly, in the 1968 landmark case of Rowland v. Christian
Rowland v. Christian
Rowland v. Christian, 69 Cal. 2d 108 , was a case decided by the Supreme Court of California that eliminated the categories of invitee, licensee, and trespasser when determining the duty of care owed by a possessor of land to the people on the land, replacing the classifications with a general duty...
, the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
replaced the old classifications with a general duty of care to all persons on one's land, regardless of their status. After several highly-publicized and controversial cases, the California Legislature enacted a statute in 1985 that partially restored immunity to landowners from some types of lawsuits from trespassers.
In the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, under the Occupiers' Liability Act, 1995, the duty of care to trespassers, visitors and "recreational users" can be restricted by the occupier; provided reasonable notice is given, for which a prominent notice at the usual entrance to the premises usually suffices.
Business
In business, "the duty of care addresses the attentiveness and prudence of managers in performing their decision-making and supervisory functions." The "business judgment rule presumes that directors (and officers) carry out their functions in good faithGood faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
, after sufficient investigation, and for acceptable reasons. Unless this presumption is overcome, courts abstain from second-guessing well-meaning business decisions even when they are flops. This is a risk that shareholders take when they make a corporate investment."