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Duty of Care – Negligence

The first element of a negligence tort is establishing the nature and extent of the defendant’s duty to the plaintiff. A duty generally arises pursuant one’s conduct or activity, such as assuming a position of authority, control, or other special relationship with someone. Any form of activity in the presence of or otherwise affecting a third party gives rise to a duty of care. A special relationship between individuals may include: parent-child, doctor-patient, attorney-client, etc. The extent of a person’s duty to others is based upon the nature (or genesis) of that duty. Once the nature of the duty is determined, the individual owing the duty must use reasonable care and skill in her actions. That is, an individual must act reasonably in a given situation (based upon the nature of the duty owed) to avoid causing harm to those to whom she owes a duty. The greater the risk or potential harm to others, the greater the level of care required to meet the duty owed.

•    Example: An individual who decides to drive an automobile owes a duty of care to other motorists and pedestrians. An individual walking on the sidewalk with others owes a duty not to walk carelessly and bump into others.

•    Discussion: How do you feel about the duty to act reasonably? What level of interaction between individuals gives rise to a duty? What types of factors should contribute to the establishment and strength of the duty between individuals?

•    Practice Question: Eric is a lifeguard by profession. He is taking a leisurely strong along the lake when he notices a person in distress. Does Eric have a duty to attempt to rescue the individual drowning individual?

 

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