duty of care

Definition of duty of care

Noun

duty of care (uncountable)

1. (law) 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.

Further reading

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.

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. Wright (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.

No physical or chronological proximity required

Although the duty of care is easiest to understand in contexts like simple blunt 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 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:

"The plaintiffs, being a member of the class for which the home was constructed, are entitled to a duty of care in construction commensurate with industry standards. In the light of the fact that the home was constructed as speculative, the home builder cannot reasonably argue he envisioned anything but a class of purchasers. By placing this product into the stream of commerce, the builder owes a duty of care to those who will use his product, so as to render him accountable for negligent workmanship."

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 law 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 Kingdom was found in the judgments of Caparo Industries plc v Dickman, in which the House of Lords 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. states 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.