What is a "duty of care"?

The “duty of care” is the responsibility one person or business has to be reasonably careful (or to use “reasonable care”) when dealing with others. In other words, the duty of care requires you to “look before you leap.” In tort law, a person who violates the duty of care by acting negligently, wantonly, or recklessly is liable for any harm another person suffers as a result of the first person’s failure to be reasonably careful.

The duty of care between any two people or businesses depends on their relationship or the particular situation they are in. Some common relationships where a duty of care exists include:

  • Manufacturers of products. In most cases, a company that makes a product has a duty of care to the consumers who buy and use it. This duty includes a duty to make the product reasonably safe for use and to provide warnings about any dangers the product has.
  • Property owners. Both business owners and home owners have a duty of care to those who come onto their property. In most states, the lengths a property owner has to go to in order to protect visitors depends on the status of the visitor. Usually, customers are given a high level of care, while trespassers receive little or no care.
  • Businesses. Directors and managers of businesses have a duty to act in good faith and make reasonable decisions in the best interests of the business. This duty of care is also known as the business judgment rule.

In most tort situations, the duty of care is the duty to act as a reasonable person would act. In real life, the “reasonable person” does not exist; he is a creation of tort law, used to measure whether a real person’s actions match up to what the reasonable person would have done. The imaginary reasonable person always pays attention and acts carefully. He considers the possibility that someone will get hurt by his actions and chooses the safer course if there is one.

In a tort case where the reasonable person standard applies, the defendant’s actions are compared to what the reasonable person would have done in the same situation. If the defendant’s actions don’t live up to the reasonable person’s actions, the defendant may be found negligent and be liable for any injuries his negligence caused.

Specialized tort situations use a specialized duty of care. In a medical malpractice case, for instance, a doctor’s actions are compared to the actions a reasonable doctor in his field would have taken, not the actions a reasonable layperson would have taken. Similarly, in legal malpractice an attorney’s duty of care is to act as a reasonable attorney would in that same situation.

Children and people with disabilities also have a slightly different duty of care. The duty of care for an adult with a disability is what a reasonable person with that disability would do. Most courts do not allow a disability to be an excuse for recklessness or poor planning, but they do recognize that some disabilities prevent the person who has them from taking the full range of options available to a non-disabled adult.

Very young children cannot be liable for negligence in most states, because they are not yet capable of understanding how to make a reasonable choice. Once a child reaches the age of six or seven, however, he is held to the same duty of care as a reasonable child of the same age and experience would have used.

Some situations are so dangerous that no matter how much care a person takes, he cannot make things reasonably safe. These cases are known as strict liability cases, meaning that the person with the duty of care will be liable if an injury occurs no matter how careful he was. Common strict liability situations include manufacturing explosives and keeping dangerous animals.

Failing to live up to the duty of care is known as a breach of duty. In tort cases, proving both that a duty exists and that it was breached are required. One person can only be liable to another if he had a duty to act with reasonable care toward the other person.

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