{{Short description|Type of legal obligation}} {{for multi|corporate duty of care|Duty of care (business associations)|other uses|}} {{Tort law}}
thumb|right|City governments typically have a duty of care to repair and maintain sidewalks.
In tort law, a '''duty of care''' is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care to avoid careless acts that could foreseeably harm others, and lead to claim in negligence. 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 that 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 who have 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 formalisation of the social contract, the established and implicit responsibilities held by individuals/entities 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 judgment of William Brett (later Lord Esher), Master of the Rolls, in ''Heaven v Pender'' (1883). Although Brett's formulation was rejected by the rest of the court, similar formulations later appeared in the landmark U.S. case of ''MacPherson v. Buick Motor Co.'' (1916) and, in the UK, in ''Donoghue v Stevenson'' (1932). Both ''MacPherson'' and ''Donoghue'' were product liability cases, and both expressly acknowledged and cited Brett's analysis as their inspiration.
==Scope== Although the duty of care is easiest to understand in contexts like simple blunt trauma, it is important to understand that the 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: {{bquote|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.}}
==Responsibility== 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; as Justice Cardozo put it, to rule otherwise would be to expose defendants "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class."<ref>''Ultramares Corporation v. Touche'', 255 N.Y. 170, 174 N.E. 441 (1931).</ref> There must be some reasonable limit to the duty of care; the problem is where to set that limit.
=== England === {{Main|Duty of care in English law}} Whether a duty of care exists depends firstly on whether there is an analogous case in which the Courts have previously held there to exist (or not exist) a duty of care. Situations in which a duty of care have previously been held to exist include doctor and patient, manufacturer and consumer,<ref>''Donoghue'', infra</ref> and surveyor and mortgagor.<ref>''Smith v Eric S Bush'' [1990] 1 AC 831</ref> Accordingly, if there is an analogous case on duty of care, the court will simply apply that case to the facts of the new case without asking itself any normative questions.<ref>''Robinson v Chief Constable of West Yorkshire Police'' [2018] UKSC 4</ref>
If there is no similar case that the court will determine whether there is a duty of care by applying the three normative criteria the House of Lords set out in ''Caparo Industries plc v Dickman''.<ref>''Caparo Industries plc v Dickman'' [1990] 2 AC 605</ref> The criteria are as follows:
* Harm must be a "reasonably foreseeable" result of the defendant's conduct;<ref name="Donoghue v Stevenson">{{cite BAILII|litigants=Donoghue v Stevenson |court=UKHL |year=1932 |num=100 |parallelcite=[1932] AC 562 |courtname=auto |date=26 May 1932}}.</ref><ref>{{cite AustLII|NSWSC|260|2015|litigants=Wormleaton v Thomas & Coffey Limited (No 4) |courtname=auto}}.</ref><ref>{{cite AustLII|HCA|46|1961|litigants=Chapman v Hearse |parallelcite=(1961) 106 CLR 112 |courtname=auto}}.</ref><ref>{{cite AustLII|NSWSC|169|2015|litigants=Endeavour Energy v Precision Helicopters Pty Ltd |parallelcite= |courtname=auto}}.</ref> * A relationship of "proximity" must exist between the defendant and the claimant; * It must be "fair, just and reasonable" to impose liability.
===Australia=== The High Court of Australia has deviated from the English approach, which still recognises a proximity element. Rather, Australian law first determines whether the case at hand fits within an established category of case where a duty of care has been found.<ref name="Perre v Apand">{{cite AustLII|HCA|36|1999|litigants=Perre v Apand |parallelcite= (1999) 198 CLR 180 |courtname=auto}}.</ref>{{rp|p 217}} For example, occupiers of a premises automatically owe a duty of care to any person on their premises.<ref name="Safeway Stores v Zaluzna">{{cite AustLII|HCA|7|1987|litigants=Safeway Stores v Zaluzna |parallelcite= (1987) 162 CLR 479 |courtname=auto}}.</ref>
If this is not the case, then the plaintiff must prove that it was reasonably foreseeable that harm could result from the defendant's actions. If so, the Court then applies a "salient features" test to determine whether the plaintiff is owed a duty of care.<ref name="Perre v Apand"/> Some of the salient features which the Court considers in making this inquiry include: # Whether imposition of a duty of care would lead to "indeterminate liability" – that is, it would interfere with the legitimate protection or pursuit of an individual's social or business interests.<ref name="Perre v Apand"/>{{rp|p 219–20}} # Whether imposition of a duty would constitute an unreasonable burden on individual autonomy.<ref name="Perre v Apand"/>{{rp|p 223–5}} # The degree of vulnerability of the plaintiff to the defendant's actions – their ability to guard against the harm.<ref name="Perre v Apand"/>{{rp|p 225–6}} # The degree of knowledge which the defendant had about the probability and likely magnitude of harm to the plaintiff.<ref name="Perre v Apand"/>{{rp|p 230–1}} Special rules exist for the establishment of duty of care where the plaintiff suffered mental harm, or where the defendant is a public authority.<ref>{{cite Legislation AU|NSW|act||Civil Liability Act 2002}} sections 27–33; 41–45.</ref>
To establish a duty of care, the plaintiff has to satisfy the requirement of CLA Act ss 27–33. In light of this, a large number of individuals cannot claim injuries as well. Meanwhile, compared to the "No-Fault Compensation" system in New Zealand, the cost to claim injuries is much higher. In light of this, individuals especially the victims who lack knowledge or capability may choose not claim private nuisance after balancing the burden and outcomes. This view was affirmed in 1993 by Professor Regina Graycar, who commented that courts in Australia are reluctant to award damages for personal injuries.<ref>{{Cite Q|Q129277302}}</ref>
In New South Wales, a plaintiff is able to recover for non-economic loss, including pain and suffering, loss of amenities/expectation of life and disfigurement, upon the severity of the loss being at least 15% of 'most extreme case'.<ref>{{cite Legislation AU|NSW|act||Civil Liability Act 2002|16}}(1).</ref> As of October 2016, NSW Attorney General, Gabrielle Upton, has updated the maximum amount of damages for non-economic loss from $594,000 to $605,000.<ref>{{cite web |title=''Civil Liability (Non-economic Loss) Amendment Order'' 2016 (NSW) |url=https://www.legislation.nsw.gov.au/#/view/regulation/2010/606/whole}}</ref>
===France=== On 27 March 2017, the French National Assembly adopted a law entitled “Devoir de vigilance des entreprises donneuses d'ordre”,<ref>[http://www.assemblee-nationale.fr/14/dossiers/devoir_vigilance_entreprises_donneuses_ordre.asp Entreprises : devoir de vigilance des entreprises donneuses d'ordre], published 28 March 2017</ref> whose title has been translated into English as a "duty of vigilance" or "duty of care".<ref name="ethicaltrade.org">Ethical Trading Initiative, [http://www.ethicaltrade.org/blog/france-adopts-new-corporate-duty-care-law France adopts new corporate “duty of care” law], 1 March 2017, accessed 7 April 2017</ref>
The law will oblige large French companies (companies with at least 5,000 staff in France or 10,000 staff within their combined French and foreign offices over two consecutive years)<ref>Norton Rose Fulbright, [http://www.nortonrosefulbright.com/knowledge/publications/147606/a-new-duty-of-care-for-the-most-significant-companies-in-france A new duty of care for the most significant companies in France], accessed 7 April 2017</ref> to
{{quote|Establish and implement a diligence plan which should state the measures taken to identify and prevent the occurrence of human rights and environmental risks resulting from their activities, the activities of companies they control and the activities of sub-contractors and suppliers on whom they have a significant influence.<ref name="ethicaltrade.org"/>}}
=== Switzerland === thumb|Flag (in French) supporting the responsible business initiative
In Switzerland, a federal popular initiative named 'For responsible businesses – protecting human rights and the environment' was launched by a coalition of non-governmental organizations. It proposed a mechanism of public liability when activities of Swiss multinationals, or their subsidiaries, violate internationally recognised human rights and environmental standards.<ref name=RBI>[https://www.admin.ch/gov/en/start/documentation/votes/20201129/iniziativa-popolare-per-imprese-responsabili-a-tutela-dell-essere-umano-e-dell-ambiente.html Popular Initiative ‘For responsible businesses – protecting human rights and the environment’], official website of the Swiss government, 2020 (page visited on 30 November 2020).</ref>
On 29 November 2020, the responsible business initiative was accepted by 51% of voters, but rejected by a majority of cantons. The failure of the initiative leads to the entry into force of the legislative counter-project. The latter also introduces new due diligence obligations. Criminal fines can be imposed for failure to report (but nor for breaches of international law).<ref name=RBI/>
===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, there are several tests for finding a duty of care in United States tort law.
====Foreseeability test==== In several states, like Florida and Massachusetts, the sole test is whether the harm to the plaintiff from the defendant's actions was foreseeable.<ref>''McCain v. Florida Power Corp.'', 593 So. 2d 500, 503 (Fla. 1992).</ref><ref>''Jupin v. Kask'', 849 N.E.2d 829, 835 (Mass. 2006).</ref>
====Multi-factor test==== The Supreme Court of California, in a majority opinion by Justice David Eagleson, 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."<ref>''Thing v. La Chusa'', [http://online.ceb.com/CalCases/C3/48C3d644.htm 48 Cal. 3d 644, 667] (1989).</ref>
Drawing upon the work of scholars such as Fowler V. Harper, Fleming James Jr., and William Prosser, California has developed a complicated 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.
California Civil Code section 1714 imposes a general duty of ordinary care, which by default requires all persons to take reasonable measures to prevent harm to others.<ref name="51 Cal.4th 764">Cabral v. Ralphs [http://scocal.stanford.edu/opinion/cabral-v-ralphs-grocery-33956 51 Cal.4th 764] (2011)</ref> In the 1968 case of ''Rowland v. Christian'', the court held that judicial exceptions to this general duty of care should only be created if clearly justified based on the following public-policy factors:
*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.<ref name="69 Cal. 2d 108">''Rowland v. Christian'', [http://online.ceb.com/calcases/C2/69C2d108.htm 69 Cal. 2d 108] (1968).</ref> A 1997 case added to this:
*the social utility of the defendant's conduct from which the injury arose.<ref>''Parsons v. Crown Disposal Co.'', [http://online.ceb.com/calcases/C4/15C4t456.htm 15 Cal. 4th 456] (1997).</ref>
Contemporary California appellate decisions treat the ''Rowland'' decision as the "gold standard" for determining the existence of a legal duty of care, and generally refer to the criteria for determining the existence of a legal duty of care as the ''Rowland'' factors.<ref>''Romero v. Superior Court'', [http://law.justia.com/cases/california/caapp4th/89/1068.html 89 Cal.App.4th 1068] (2001), quoting, "Juarez v. Boy Scouts of America, Inc." [http://law.justia.com/cases/california/caapp4th/81/377.html 81 Cal. App. 4th 377] (2000)</ref>
In California, the duty inquiry focuses on the general category of conduct at issue and the range of foreseeable harm it creates, rather than the specific actions or injuries in each case.<ref>''Ballard v. Aribe'', [http://online.ceb.com/calcases/C3/41C3d564.htm#MA000696 41 Cal. 3d 564, 572 n.6] (1986). In this oft-cited footnote, the Court stated: "[A] court's task — in determining 'duty' — is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party."</ref> Appellate lawyer Jeffrey Ehrlich persuaded the California Supreme Court to clarify the central importance of this distinction with its 2011 decision in ''Cabral v. Ralphs Grocery Co''. which requires "no duty" rulings to be based on categorical public-policy rules that can be applied to a range of cases, without reference to detailed facts.<ref>"Chavez v. Glock, Inc." [http://www.leagle.com/xmlresult.aspx?xmldoc=In%20CACO%2020120724024.xml 207 Cal.App.4th 1283, 1314] (2012), ''citing'', "Cabral v. Ralphs" [http://scocal.stanford.edu/opinion/cabral-v-ralphs-grocery-33956 51 Cal.4th 764, 772] (2011)</ref> By requiring courts to apply the ''Rowland'' factors at this high level of factual generality, the ''Cabral'' decision preserved the role of juries in determining whether the defendant breached its duty of care based on the unique circumstances of each case.<ref name="51 Cal.4th 764"/>
A majority of U.S. states have adopted some kind of multi-factor analysis based on the work of Prosser and others.<ref>''Adams v. City of Fremont'', [http://online.ceb.com/calcases/CA4/68CA4t243.htm 68 Cal.App.4th 243] (1998).</ref> 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),<ref>''Buczkowski v. McKay'', 441 Mich. 96, 1100-1101; 490 N.W.2d 330 (1992).</ref> while others developed different lists of factors, such as this one from Tennessee:
*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.<ref>''McCall v. Wilder'', 913 S.W.2d 150, 153 (Tenn. 1995).</ref>
A 2011 law review article identified 43 states that use a multifactor analysis in 23 various incarnations; consolidating them together results in a list of 42 different factors used by U.S. courts to determine whether a duty of care exists.<ref>W. Jonathan Cardi, ''The Hidden Legacy of Palsgraf: Modern Duty Law in Microcosm'', 91 B.U.L. Rev. 1873 (Dec. 2011).</ref>
The Tennessee Court of Appeal has also recently followed the California Supreme Court's lead by citing ''Cabral'' for the proposition that duty determinations must be made at the highest level of factual generality.<ref>"Gregory v. Metropolitan Government of Nashville", [http://judicialview.com/State-Cases/tennessee/Government__Politics/Gregory-v-Metropolitan-Government-of-Nashville-and-Davidson-County/28/565916 2012 WL 5306196, *10] {{Webarchive|url=https://web.archive.org/web/20130517105819/http://judicialview.com/State-Cases/tennessee/Government__Politics/Gregory-v-Metropolitan-Government-of-Nashville-and-Davidson-County/28/565916 |date=2013-05-17 }} (Tenn. Ct. App., 2012)</ref>
==Measurement== {{Main|Standard of care|Reasonable person}}
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, physicians 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.<ref>''Quelimane Co. v. Stewart Title Guaranty Co.'', [http://online.ceb.com/CalCases/C4/19C4t26.htm 19 Cal.4th 26] (1998).</ref>
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, then as a matter of law, the duty of care has not been breached and the plaintiff cannot recover in negligence.<ref>''Gilson v. Metropolitan Opera'', 5 N.Y.3d 574 (2005).</ref><ref>''Bozzi v. Nordstrom, Inc.'', [http://online.ceb.com/calcases/CA4/186CA4t755.htm 186 Cal. App. 4th 755] (2010).</ref> 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.
==Examples==
=== Products === 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 Atkin stated:
{{bquote|My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.}}
===Land=== {{Main|Premises liability}} thumb|right|upright|A notice in the Republic of Ireland informing potential entrants on premises of limits to the duty of care 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 trespasser, 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'',<ref name="69 Cal. 2d 108"/> 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.<ref>''Calvillo-Silva v. Home Grocery'', [http://online.ceb.com/CalCases/C4/19C4t714.htm 19 Cal. 4th 714] (1998).</ref>
Colorado's highest court adopted the ''Rowland'' unified duty of care analysis in 1971. The resulting explosion of lawsuits against Colorado landowners caused the state legislature to enact the Colorado Premises Liability Act in 1986, which enacted a cleaned-up statutory version of the common law classifications ''and'' simultaneously expressly displaced all common law remedies against landowners in order to prevent state courts from again expanding their liability.{{cn|date=May 2025}}
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.<ref> {{cite web|url=http://www.irishstatutebook.ie/1995/en/act/pub/0010/print.html|title=Occupiers' Liability Act, 1995|date=17 June 1995|work=Irish Statute Book|publisher=Oireachtas|access-date=2009-10-16}} </ref>
===Business=== {{See also|Business judgment rule}}
In business, "the duty of care addresses the attentiveness and prudence of managers in performing their decision-making and supervisory functions."<ref name="E&E1">Alan R. Palmiter, ''Corporations: Examples and Explanations'', 5th ed. (New York: Aspen Publishers, 2006), 192.</ref> The "business judgment rule presumes that directors (and officers) carry out their functions in good faith, 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."<ref name="E&E1"/>
===Cybersecurity=== {{See also|Reasonable person}}
With compliance requirements of 'reasonable security' to protect data, there is also an increase in more data breach litigation examining if organizations practiced reasonable and appropriate security controls.
=== Digital platforms === A review of the ''Online Safety Act'' in Australia has recommended establishing a 'Digital duty of care' requiring large digital platforms and tech companies to proactively prevent harms for their users.<ref>{{Cite web|url=https://www.infrastructure.gov.au/department/media/publications/report-statutory-review-online-safety-act-2021|title=Report of the Statutory Review of the Online Safety Act 2021|date=4 Feb 2025|website=Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts, Commonwealth of Australia|last=Government of Australia|url-status=live}}</ref> The Australian Government subsequently announced in 2024 that it would legislate a Digital duty of care.<ref>{{Cite web|title=Australia will impose a ‘digital duty of care’ on tech companies to reduce online harm. It’s a good idea – if it can be enforced|url=http://theconversation.com/australia-will-impose-a-digital-duty-of-care-on-tech-companies-to-reduce-online-harm-its-a-good-idea-if-it-can-be-enforced-243682|website=The Conversation|date=2024-11-14|access-date=2025-12-01|language=en-US|first=Lisa M.|last=Given}}</ref>
== See also == * Due diligence * Standard of care * Parental controls * Reasonable person
== References == {{Reflist}}
{{Underwater diving|divlaw}} {{authority control}}
Category:Tort law Category:Legal doctrines and principles