Duty of Care – Negligence

Cite this article as: Jason Mance Gordon, "Duty of Care – Negligence," in The Business Professor, updated January 9, 2015, last accessed April 8, 2020, https://thebusinessprofessor.com/knowledge-base/duty-of-care-negligence/.

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Return to: TORT LAW

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?

Proposed Answer

  • No. Eric has no legal duty to the individual drowning. A legal duty of care is a requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. This is, it is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. If a person’s actions do not meet this standard of care, then the acts are considered negligent and any damages resulting may be claimed in a lawsuit for negligence. In the example from the practice question, Eric being a lifeguard, alone, does not obligated him to rescue the person. If, however, Eric on duty at the lake or were to begin to undertake help, he would incur a duty to the individual.  https://legaldictionary.net/duty-of-care/

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