This article is written by Swarnav Biswas pursuing US Technology Law and Paralegal Studies: Structuring, Contracts, Compliance, Disputes and Policy Advocacy from LawSikho.

This article is published by Anshi Mudgal.

Introduction

The concept of duty of care is one of the foundational concepts in tort law globally for most of the common law countries. Lexis Nexis UK defines the present concept as the circumstances that give rise to an obligation upon the defendant to take due care to avoid any unanticipated harm to the claimant in every possible circumstance of the case in question. Once any claimant has successfully established that the defendant didn’t take the necessary duty of care, the case is pursued. In this case, legal action can be avoided if the proper care is taken. Now, we will develop a brief and crisp knowledge of the duty of care.

Duty of care: legal foundation

In tort law, the duty of care doesn’t stand alone, it comes with the foreseeability of any event by the defaulter. That means whether the defaulter must reasonably have foreseen the harms that would be the result of their actions. The foreseeability of the harm decides whether any defendant is liable for the harm or not. If the harm caused is not foreseeable generally, the defendant might not be liable. But, if the loss or omission could be foreseen as an ultimate result of the breach of duty or negligent action, the negligent action would result in physical injury, property damage or economic loss. 

Generally, in the USA, if an employee causes harm to any of the citizens due to their negligence or by breach of duty, the said federal government employee is liable to pay damages to the individual who has suffered the loss due to their negligent act under the Federal Tort Claims Act (FTCA). 

The American Law Institute’s Principles of Corporate Governance depict that the duty of care is the legal duty of an individual or an officer of a corporation to be responsible and take reasonable care of others and perform their actions in good faith. It also obligates the person to avoid careless acts that can actively harm others and might lead to negligence. It is hoped that all people will act responsibly, not causing anyone any possible damage. If a person is injured or a certain activity causes loss to that person, it will fail to abide by the duty of care.

Relationship between the duty of care and negligence claims

Duty of care is an obligation enforceable by law to bind individuals from doing anything that might cause injury or any type of loss to anyone else. It also burdens the individual with the responsibility of taking care of others. It is the foundation of a negligence claim. Negligence is the failure of an individual to be a responsible person who wouldn’t cause any damage or injury to others and would be conscious under the same situation or circumstances. Negligence takes place where reasonable care is absent and the individual lacks the potential to anticipate the actual result of their action. The lack of responsible actions proves negligence only when the respective person must act.

Key legal standards

There are certain limitations to exposure to a duty of care that involve indemnification, directors’ and officers’ insurance, and liability waivers. In the United States, some courts apply the hand formula, which establishes that if the cost of precautions is less than the likelihood of loss multiplied by the extent of that loss, the defendant has failed in their duty of care. Additionally, it is important to remember that the harm experienced by the plaintiff usually involves bodily injury or property damage 

A company that is engaged in exporting hazardous materials has a low-cost service to regularly inspect the containers for damage and leakages in the containers. The probability of a leakage and damage occurring might be moderate, but the potential damage to the environment and surrounding property could be substantial. If the cost of inspection is less than the expected loss, the company has to conduct these inspections.

Landmark case

Donoghue v Stevenson [1932] AC 562 forms the basis for establishing a duty of care and underpins modern negligence law. In this case, Mrs. Donoghue ordered and drank ginger beer from a dark, opaque bottle, only to later discover a decomposed snail inside, which led to her illness. Consequently, she sued the manufacturer, Stevenson, for negligence, despite lacking a direct contract with him. The House of Lords affirmed the “neighbour principle,” stating that manufacturers have a duty of care towards consumers, even in the absence of a contract, if harm is reasonably foreseeable. 

This case established that without a contract between the plaintiff and defendant, there was no basis for a negligence claim, provided that the defendant breached their duty and caused harm to the plaintiff. The defendant’s actions must serve as the cause-in-fact for the harm experienced by the plaintiff to support a negligence case.

Foreseeability as a key factor in the duty of care

In the cases of negligence, the key element to determine the liability of negligence is foreseeability. It is the general foreseeing of the outcome of causing any harm. It questions if the defendant, being a reasonable person, would or could have anticipated that their omissions might cause damage to someone. Foreseeability ensures that a defendant can only be liable if a reasonable person could have anticipated the harm that resulted from their actions, not necessarily in the very exact way of injury, the general type of harm and the class at risk.

How courts determine foreseeable harms

In the United States, determining negligence is done by considering whether the harm caused was “foreseeable” for an ordinary prudent person in natural circumstances. In the context of foreseeability, the ability to reasonably anticipate or predict that certain conduct can cause certain harm, injury or damage to a third person, therefore, it is very important to determine the degree of foreseeability of any event. 

There are certain standards as per the legal provisions upheld in US courts. Those are discussed in orderly fashion hereinunder.

Types of foreseeability

Objective standard

The objective standard in foreseeability says the court decides if a rational or prudent person would have foreseen the plaintiff’s damage as a result of his action as the defendant. This doesn’t necessarily have to be based on the defendant’s actual knowledge, but from the perspective of what a reasonable person would have known.

For an example speed limits are a clear example itself as a posted 65 mph limit is a measurable, verifiable fact, irrespective of individual opinions on what is the safe speed for busy roads, high ways, etc, similarly, scientific measurements like the freezing point of water at 32 degrees Fahrenheit remain constant, providing an external, impartial benchmark are prepared, ensuring uniformity and comparability across companies.

Subjective standard

The Subjective standard of foreseeability pictures the specific knowledge of the defendant. It analyses the true knowledge and consciousness of the defendant about the risks associated with their actions. It focuses on the true intention of the defendant and the consciousness about the outcome of his actions.

For an example appreciating a piece of art is subjective, as one person may find beautiful while another sees it as meaningless; likewise, judging a movie as “good” or “bad” relies on personal taste and emotional response, It may vary greatly between viewers; and in performance reviews, evaluating “teamwork” can be subjective, as it includes the process of interpreting interpersonal interactions and individual contributions, which are often influenced by personal biases and beliefs.

Case example

In Holcombe v. NationsBanc (1994), the claimant was the contractor’s employee cleaning restrooms in a bank when the partition fell on her. The bank manager was well aware of the falling position of the partition for a couple of months. Plaintiff agreed that she might have hit the partition slightly, which made it fall ultimately. 

The relationship between foreseeability and proximate cause

Generally, proximate cause refers to an event sufficiently related to damage or injury that the courts pronounce the event to be the reason for it. It is an actual cause that is also legally sufficient to support liability. It is the legal connection between the defaulters’ careless or reckless act and the loss suffered by the claimant. It is to mentioning that the harm must be a reasonably foreseeable consequence of the defendant’s actions.

The but-for test vs. the substantial factor test

The but-for test is infamous in tort law studies to determine actual causation, which is a prerequisite to liability concerning proximate cause. It focuses on the occurrence of harm without the person’s actions. The but-for test has a stringent check and balance system to determine the liability of the defaulter. Whereas, the substantial factor test is mostly applied in some jurisdictions where it is found that the but-for test would be too restrictive. In simpler terms, if someone’s action or behaviour is responsible for the occurrence of any harm to anyone else, then they are said to have caused the harm.

The role of foreseeability in limited liability

Foreseeability reveals a uniform principle of policy to confine legal liability in tort to circumstances in which a man’s conduct generated foreseeable danger to a foreseeable part of society. Foreseeability plays a significant role in limiting liability by establishing a link between the defendant’s actions and the ensuing harm, proving that the defendant is not responsible for the remote consequences.

Case example

In Wagon Mound (1961), it was made clear that the defendant was responsible for the loss that resulted from negligent behaviour, as they had caused those harms. Damages are only to be compensable where that damage could have been reasonably foreseen by a reasonable man.

The present case’s focus is on foreseeability in negligence. The crew of the Wagon Mound carelessly released furnace oil into Sydney Harbour. This oil drifted and later ignited, resulting in extensive fire damage to the Respondents’ wharf. The key question was whether the ship owners could be liable for the fire damage. The court found that although the oil spill was negligent, the resulting fire was not a reasonably foreseeable outcome of the spill at that time. At the time, prevailing scientific understanding did not consider furnace oil on water to be easily flammable. As a result, the court reversed the lower court’s ruling, establishing that for a defendant to be held liable, the damage must be a reasonably foreseeable consequence of their negligent action, not just a possibility.

Discussion of policy considerations

In tort law, the court ensures that defendants are not held liable for harm that is too remote; if a prudent person could not have foreseen the harm, it would be unjust to hold the defendant liable. The legal system remains manageable by imposing liability only for foreseeable consequences, preventing businesses from being overwhelmed by unpredictability and exposure to limitless liabilities.

U.S. negligence and duty of care law balances compensation for victims with deterrence of harmful behaviour, striving for justice while considering social welfare and economic impacts. Key policy considerations must include the foreseeability of harm, the burden of precautions, the complexities introduced by technological advancements and other factors.

Expanding duty of care in different contexts

Personal injury and premises liability

Landowners must maintain safe premises for all of their visitors. Just like slip and fall accidents, property owners may be held liable if a hazardous condition was foreseeable and preventable. Large retail chains, for example, have faced lawsuits when customers were injured due to foreseeable risks, such as wet floors or falling merchandise.

Medical malpractice

Physicians owe a duty of care towards their patients based on maintaining medical standards. If a physician ignores a patient’s risk factors for a known medical condition, leading to harm, foreseeability plays a key role in determining negligence. The increasing use of artificial intelligence in healthcare presents new challenges in foreseeability. Courts are now examining whether AI-based medical decisions can be considered foreseeable under negligence law.

Employer liability

Employers can be held liable for reckless hiring, as held in the case of Faragher v. City of Boca Raton (1998), where it was established that employers have responsibility in the workplace for harassment cases. The ruling emphasised that employers must take reasonable steps to prevent foreseeable workplace misconduct and harassment. Foreseeability in workplace safety also applies to industries where those can happen.

Product liability and business negligence

Manufacturers must warn consumers of foreseeable risks associated with their products and also manufacturers or the service providers must bear the liability in case the duty of care is not taken on before which is held in the case of the infamous Liebeck v. McDonald’s Restaurants (1994), Stella Liebeck, 79, had suffered severeburns from spilled McDonald’s hot coffee, served at a dangerously hot. McDonland tried to settle the case in private with a minimal settlement amount. 

This case is often misinterpreted, underscoring corporate responsibility and product safety, highlighting the severe risks of serving excessively hot beverages. It was highlighted how foreseeability applies in product liability, also. The court found that McDonald’s had prior knowledge that their coffee was dangerously hot and posed a foreseeable risk to consumers, so it’s the responsibility of McDonald’s to take prior care.

Challenges and evolving trends in foreseeability and duty of care

In today’s world of artificial intelligence and robust technological development, there are new challenges in regard the duty of care or foreseeability of any event or incident. 

Cybersecurity Risks 

Businesses may face liability for potential data breaches, which may be foreseen or not. Companies are compelled to implement reasonable security measures to prevent cyberattacks on their system and servers. As an example of cyber security risks, including the duty of care, is data breaches, security breaches in a company’s server. 

Artificial Intelligence (AI) and Autonomous Vehicles 

The Judicial system is struggling to consider the ethical usage of AI and its output.  If an autonomous vehicle causes an accident, courts must decide whether the harm was foreseeable and who should bear liability, as the car was driven by an artificial intelligence model. 

Climate Change and Environmental Liability 

Companies are increasingly held accountable for environmental hazards and emissions that might be foreseen, such as oil spills and pollution-related health risks.

Public Policy and Legal Debates 

Legislators and courts continually read, adapt and give different interpretations to the laws to address foreseeable risks while maintaining fairness in liability standards.

We need for stringent law to combat the advancements and possibilities created in the practice of personal injury law, which also includes the abovementioned cases. 

Conclusion

Foreseeability and duty of care will remain foundational principles in negligence law. As standards of legal principles are ever-evolving in nature, courts must maintain a balance between protecting individuals from harm and ensuring fairness in liability determinations. Understanding these legal concepts is crucial for individuals and businesses.

In conclusion, the duty of care is anchored by foreseeability, forms the cornerstone of negligence law, it is ensures accountability for reasonably anticipated harms. From landmark cases like Donoghue v Stevenson (1932) to modern challenges posed by AI and climate change, the legal system constantly adapts to balance victim compensation with responsible conduct. And the policy considerations will help courts to develop more just precedents.

Frequently Asked Questions (FAQs)

What is “duty of care”, and how does it relate to negligence?

“Duty of care” is a legal obligation to avoid harm that could be anticipated by an ordinary prudent person. It’s the foundation of a negligence claim in personal injury law practice in the US when someone fails to exercise this care, leading to harm.

How do courts determine if harm was “foreseeable” in a negligence case?

The US Courts use both the objective and subjective standards method to determine liability, where the objective standard asks if a “prudent person” would have anticipated the harm as a cause of the said act, and on the other hand, the subjective standard looks at what the specific defendant knew or should have known. Courts also use tests like the “but-for” test and the “substantial factor” test to determine if the defendant’s actions were the proximate or exact cause of the harm.

With the rise of new technologies like AI and autonomous vehicles, how is the “duty of care” changing?

The legal system is adapting to address new challenges. The US judiciary is evolving with the interpretations of questions of liability when AI or autonomous vehicles cause harm, trying to determine if such harm was foreseeable.

References

• https://www.nycbar.org/get-legal-help/article/personal-injury-and-accidents/duty-care/
• https://www.tortmuseum.org/liebeck-v-mcdonalds/
• https://www.law.cornell.edu/wex/substantial_factor_test
• https://www.caoc.org/?pg=facts
• https://www.oxbridgenotes.co.uk/law_cases/the-wagon-mound-1
• https://www.drishtijudiciary.com/to-the-point/ttp-torts/remoteness-of-damages-under-the-law-of-torts

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