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Duty of care under torts

November 1, 2023

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This article is written by Shreya Patra of Xavier University, Bhubaneshwar. This article covers the concept of duty of care, recent news about it, the relevance of duty of care under the general law and under the law of torts, elements of it, duty of care of parties under the law of torts, defenses available to accused or defendant under it, the significance of parties and their relationship to law of torts, different types of negligence amounting to duty of care under law of torts that are followed in different states across the United States, special parties and relationships under it and its exemptions.

It has been published by Rachit Garg.

Table of Contents

Introduction

“No tort is assignable, in law or equity. It is within any species of action at common law.”

Joseph Yates

The duty of care is simply the legal duty that one owes when one is required to function carefully when handling tasks that could cause reasonable harm to other people. It is not limited to relationships defined contractually on paper like those of employers and their employees but also extends to healthcare professionals like doctors, nurses, residents, guardians, or parents and their children. In order to bring forward a claim of duty of care there first has to be a claim of negligence to be brought about. A claim of negligence leads to a lack of proper duty of care which is a tortious action.

During the time of the rampant spread of the catastrophic pandemic, COVID-19, several people were affected, including employees and non-employees, including families of employees. One such person was the wife of the employee, who contracted the infection, which spread to his wife, who already had medical complications. The Supreme Court of California in the case of Kuciemba v. Victory Woodworks, Inc (2023), held that employers have no such duty of care under the law of tort towards such non-employees. Any contentions by third parties would be restrained from further entertainment in the court. And, allowing for such a duty to be taken by employers for non-employees would be enormous, and they would be required to cater to a large section of society. Thus, it was disregarded. Thus it becomes essential for us to understand the constituents of duty of care before getting into it. Whether or not an unborn plaintiff can claim damages for tortious acts and whether or not the relationship between parties affects the liability is further discussed in the article. This article will discuss in detail the nuances of duty of care under torts.

Understanding duty of care

Under the general law

The general understanding of the duty of care is that it is an obligation imposed on the doer of the act to foresee any harm that might arise out of his actions that could potentially lead to others being put in a dangerous situation. It is expected that the one who is taking such actions exercises reasonable care and caution to prevent causing any unnecessary harm to others.

For example, if John is boiling a pot of water, after he is done using it, he should either inform Alex (who lives in the same house and uses the same kitchen) about the pot being hot or rinse it with some cold water to prevent anyone from experiencing burns. It is reasonably foreseeable that the consequences of leaving the hot pot in the kitchen would be someone accidentally touching it and getting burn marks, hence, it can be prevented.

Under the law of tort

Under the law of tort, duty of care is an obligation imposed in a legal sense that requires the one who is going to do any action to take the necessary steps to prevent any foreseeable damage that could occur as a result of his/her actions. In order to bring forth a claim of absence of duty of care, they have to show a claim of negligence, that is, lack of reasonableness in the defendant’s actions which caused them such injury.

In another case, McCullar v. SMC Contracting, Inc. (2022), an employee was hired by a contracting service to install an automatic fire sprinkler. The employee arrived at the place of installation of the sprinkler only to find the place covered in ice. The ice was formed due to the contractor’s work at the same place that day. As he proceeded to ask what could be done about it, he was asked to get the sprinkler installed, gave unclear instructions about the ice, and asked the employee to get to work. As he got to work, he fell off the ladder placed there because the ladder slipped off the ice. A case was filed. The Court held that if an employee has been hired, then the onus of duty of care falls on the hirer, and the contractor would not be liable for the same.

Elements to claim duty of care under the law of tort

Negligence forms the most important part of the duty of care. It is the foundation for most of the claims under the law of tort. Negligence is simply the lack of taking the reasonable level of care and caution one is supposed to take in order to prevent the consequences of their action from causing harm or injury to another. Negligence forms an important part of determining whether the accused is liable, especially for the actions that are assumed to have caused some harm or injury to the plaintiff. In order to bring a claim of tort it is important to show that there has been an actionable negligence.

In order to establish a claim of duty of care, it is important to establish a claim of negligence, which can be claimed if the following five elements are proved:

Duty of accused

One of the elements of duty of care is that there must be a reasonable thought to act in a certain manner to prevent causing any harm or injuries to another. The duty of care must naturally arise due to the fact that if things go bad during the actions carried out, it could lead to potential harm and injury to another person, which could be foreseeably prevented.

Legal duty and a breach of such duty of care

Subsequent to establishing that there existed such a duty of care that the accused should have reasonably exercised but failed to do so and breached such a duty of care. There must have been a breach that resulted in the causing of the harm or injury to another.

In the case of United States v. Carroll Towing (1947), an important formula was established in order to determine if there was truly a breach of duty of care that the accused should have owed to the plaintiff. There were three elements that were taken into consideration in determining this. First is the burden of taking reasonable precautions, attributed to the letter “B” in the formula; second is the probability of loss that is caused to the plaintiff or any other person, attributed to the letter “P” in the formula, and third is the severity of personal loss that is caused (no societal loss is accounted for here, attributed to the letter “L” in the formula. The formula can be represented as follows:

If B < PL, there was a breach of duty of care by the defendant towards the plaintiff

If B > PL, then there was no breach of duty of care by the defendant towards the plaintiff

The significance of this formula is the fact that it takes several important elements into consideration in order to determine up to what extent the accused is to be made liable for the economic loss caused to the injured party and address them appropriately, and bring the plaintiff back to the state he was in as if he did not cause any harm to the plaintiff through monetary compensation.

Occurrence of an injury

The accused must have had a duty of care towards others which he might not have carried out and, as a result, caused harm and injury to another. There must be some kind of injury that can be attributed to such an action.

Proximate cause

The accused must have failed to carry out or exercise reasonable care and caution, due to which such injury or harm was caused. Such injuries should approximately be attributable to the failure to carry out the action with reasonable care and caution. In order to truly establish that there was a proximate cause it becomes important to establish that there was some reasonable foreseeability by the defendant that his or her actions could cause such harm or injury to another.

Parties and relationships to duty of care

General parties and relationships

The accused

The accused is generally the one who has performed a certain act or action, and during such performance, a duty of care arises and is created that he or she has failed to look out for in order to prevent any harm or injury to the accused. Hence, this has caused the plaintiff to file for a suit. The accused will be liable if the act or action was intentional, as they had the aim to cause harm or injury to the plaintiff. The accused would also be liable if the act is found to be unintentional because it showcases the fact that the accused failed to take reasonable care and caution while exercising the act and did not fulfill the duty of care.

The major defenses for the accused or defendant are:

Contributory negligence

Contributory negligence refers to the fact that the plaintiff (in this case) contributed towards causing themselves injury. In case the part of contributory negligence is proved, the defendant/accused is not required to compensate for such loss or damage that is caused as it was a result of the plaintiff’s negligence.

For example – A person driving any four wheeled vehicle is required to wear the seat belt for the purpose of safety. Now if the driver does not wear the seat belt and drives rashly and ends up hitting a pedestrian, then in that case he has contributed to his own injuries as well as the pedestrian. The pedestrian would not be liable to pay for the driver’s injuries until and unless the Court finds him reasonably at fault for it, like cycling on the wrong side.

The states that follow contributory negligence are as follows:

State	Relevant Code or Case Laws
Alaska	Alaska Statutes Title 09 – Section 09.17.060 to 080
Alabama	Alabama Rules of Civil Procedure – Section 8(c)
District of Columbia	Wingfield v. People’s Drug Store (1978)
Indiana	Indiana Code – Section 34-51-2-6
Kentucky	Kentucky Revised Statutes – Section 411.182
Maryland	Garrett County v. Bell Atlantic, 695 A.2d 171
Mississippi	Mississippi Code – Section 11-7-15
North Carolina	Smith v. Fiber Controls Corp., (1980)
Nebraska	Nebraska Revised Statutes – Section 25-21, 185.11
New Jersey	New Jersey Statutes Annotated – Section 2A:15-5.1
New York	New York Consolidated Laws and Rules – Section 1411
Ohio	Ohio Revised Code Annotated – Section 2315.33
Oregon	Oregon Revised Statutes Annotated – Section 31.600
Vermont	Vermont Statute Annotated – Title 12 – Section 1036
Virginia	Baskett v. Banks (1947)
Washington	Revised Code of Washington – Section 4.22.005 – 015
Wisconsin	Wisconsin Statute – Section 895.045(1)

Comparative negligence

Comparative negligence is a principle under the law of tort which helps to ascertain that amount by reducing it so only that reduced amount would be claimed by the injured or affected party in a claim of negligence. The purpose of comparative negligence is to ascertain the proportion of negligence contributed by the plaintiff and the defendant. What sets comparative negligence apart from contributory negligence is the fact that in comparative negligence, the plaintiff can claim for the damages caused as a result of the defendant’s negligence even though the plaintiff contributed to it up to some extent. However, in the case of contributory negligence, the plaintiff cannot claim any damages since there was fault of the plaintiff. Comparative negligence can be categorized into the following types:

Pure comparative negligence

The concept of pure comparative negligence envisages the plaintiff to be able to claim for the damages for the 1% that they are not at fault for, that is, only the defendant is at fault for it. Due to such a low percentage, the compensation is proportionately less, and this amount is determined by the Court itself.

The concept of pure comparative negligence is followed in only a very few states. They are listed below as follows:

State	Relevant Code or Case Laws
Arizona	Arizona Revised Statutes – Section 12-2505
California	LI v. Yellow Cab Co. (1975)
Florida	Florida Statutes – Section 768.81(2)
Louisiana	Louisiana State Act – Civil Code – Article 2323
Missouri	Gustafson v. Benda (1983)
New Mexico	Scott v. Rizzo (1981)
Rhode Island	Rhode Island General Laws – Section 9-20-4

Modified comparative negligence

The modified comparative negligence rule is categorized into two types known as the 50% bar rule and the 51% bar rule. Under the 50% bar rule, the plaintiff cannot claim for any damages or compensation if the Court finds their contribution to the fault to be greater than or equal to 50%. Under the 51% bar rule, the same as the 50% bar rule is followed. That is, the plaintiff cannot claim for any damages or compensation if the Court finds their contribution to the fault to be greater than or equal to 51%.

The states that follow modified comparative negligence are followed in a majority of the states. They are as follows:

State	Relevant Code or Case Laws
Arkansas	Arkansas Code – Section 16-64-122
Colorado	Colorado Revised Statutes – Section 13-21-111
Connecticut	Connecticut Code – Section 52-572h
Delaware	Delaware Code – Title 10 – Section 8132
Georgia	Georgia Code – Section 51-11-7 and Section 51-12-33
Hawaii	Hawaii Revised Statute – Section 666-31
Idaho	Idaho Code – Section 6-801
Illinois	Illinois Compiled Statute – Section 5/2-116
Iowa	Iowa Code – Section 668.3
Kansas	Kansas Statutes – Section 60-258a
Maine	Maine Revised Statutes Annotated – Title 14 – Section 156
Massachusetts	Massachusetts General Laws Annotated – Section 85
Michigan	Michigan Compiled Laws – Section 600.2959
Minnesota	Minnesota Statutes Civil Actions – Section 604.01
Montana	Montana Statute – Section 27-1-702
Nevada	Nevada Revised Statute – Section 41.141
New Hampshire	New Hampshire Revised Statute – Section 507:7(d)
North Dakota	North Dakota Century Code – Section 32-03.2-02
Oklahoma	Oklahoma Statutes – Title 23 – Section 13
Pennsylvania	Pennsylvania Statute – Title 42 – Section 7102
South Carolina	Ross v. Paddy (S.C. Ct. App. 2000)
Tennessee	McIntyre v. Balentine McIntyre v. Balentine (Tenn. 1992)
Texas	Texas Civil Practice and Remedies Code Annotated – Section 33.001 to Section 33.017
Utah	Utah Code – Section 78B-5-818(2)
West Virginia	West Virginia Code – Section 55-7-13a-d
Wyoming	Wyoming Statute – Section 1-1-109(b)

The plaintiff

The plaintiff is the individual who is affected by the accused actions. The plaintiff is affected in the form of harm and injury and in order to address this the plaintiff often files suit and seeks for compensation. This compensation helps the plaintiff to treat the injury or harm caused and restore the plaintiff back to their original state.

Special parties, relationships, and duties

Unborn plaintiff

The unborn plaintiff is one of the most complicated relationships under the law of tort. An unborn plaintiff can also be subject to damages under the law of tort. As the American law system soon began to accept the view (that an unborn child is assumed to be able to claim all rights and privileges as if he is already born) of the English property law, the same was and did not apply to the law of tort.

Claim for injuries while the child was in womb

In the case of Dietrich v. Inhabitants of North Hampton (1884), a pregnant woman was walking. She happened to slip and land on the highway which was defective. As a result of such a slip and subsequent injuries, she miscarried and her child did not survive. The pregnant woman filed for a suit. The Court held that she could not claim for the injuries her child received when it was in the womb of the mother. It was simply held that no civil duty would arise or be owed to one who is not in existence and this applies to the unborn child as well. After this case, several other cases discussed the connection between the law of torts and its duty towards unborn plaintiffs.

Justice Boggs dissenting opinion in subsequent cases

After several years, a more clear picture was painted regarding this. In the case of Allaire v. St. Luke’s Hospital et al. (1900), a child was born a few days after his mother had been injured in an accident in the elevator while he was still in the womb. The plaintiff filed a suit against the hospital to claim compensation for the injuries, which included permanent physical injuries. However, the Court decided that the hospital owed the child no duty as the injuries were caused when he was still in the womb and he had no legal identity or existence of his own. Justice Boggs brought an interesting interpretation to this discussion. Justice Boggs presented a dissenting opinion by taking a new approach to interpretation. He put “viability” as the focal point of his interpretation. He believed that in the case of Dietrich (1884), the fetus survived for less time and could not have been termed as advanced in fetal life, and could not survive the birth of a premature nature. But, in this case, the child was born alive and has survived for a considerable time. Thus the child must be able to claim for the right of action as a result of any prenatal injuries while in a viable state. Justice Boggs was of the view that no question of duty or compensation arises if the child dies as a result of injuries inflicted. But if the child manages to survive, denying the child the right to recover any of the damages would basically imply that they are denying the fact of the child’s existence.

Viability of the child born which received injuries while in womb

In the case of Bonbrest v. Kotz (D.D.C. 1946), a child suffered injuries while it was in the womb of the mother. The injuries were cited as having been caused by malpractice of a professional nature. The Court carefully examined the case, taking into consideration other judgments. It finally came to the conclusion that if the child survived the injuries while in the womb, and was born viable and also alive, then in that case, the child can file for a suit of action to claim for the damages suffered as a result of such professional malpractice/negligence, which applied to this case.

Subsequent to Bonrest (1946), there were many cases that highlighted the same view. Dietrich (1884) was no longer the measure for such instances and was substituted by the view that if the infant survives and is a viable fetus, then, in that case, there must be no discussion about the fact that, the child has a separate legal existence outside of it’s mother’s womb. And, upon being born, there could be a duty owed to such a child.

But what still remains in question is what exactly makes a fetus viable. This would remain to be a question of biology, which the medical scene was advanced enough to answer and address accurately. Thus, it was not possible to use the viability of the fetus as a measure.

Causal link between the tortious act and harm to child

In the case of Kelly v. Gregory (1953), emphasis was laid on the fact that it is important for the child to show how such a tortious act caused him/her harm in order to bring forward a claim of actionable negligence. There must be a causal link between the wrong done by the defendant and the injury or harm caused to the plaintiff, and, if the child can prove it, the child should be able to claim for the same. It further expanded the concept of the right of action in such instances.

Liability for negligence in case of preconception

In the case of Renslow v. Mennonite Hospital (1976), a woman was transfused with the incorrect blood into her. Though it did not have any immediate effects on her, it was subsequently detected when she was pregnant less than a decade later. As a result, the fetus was affected. The suit failed to hold relevance and the court dismissed it as the hospital owed her no duty of care in the year 1965 as the child had not been conceived during that time of the transfusion. On an appeal the court discovered that was indeed a duty owed to the plaintiff who is a minor as the blood transfusion affected the minor plaintiff. And such injuries of a prenatal nature are foreseeable.

Legal Duty: Extension of Renslow

After the case of Renslow (1976), the judges were of the view that allowing the plaintiff to claim for compensation would lead to dangerous implications for the society as it could create new problems including problems like how to determine the measure of any risk, and how defendants would be free from liability in similar cases.

Justice Robert was of the view that foreseeability does not imply that there is an existence of a duty. He was also of the view that such a claim for compensation for damages arising should be restricted to injuries after conception only and not before. And the Court’s acceptance of the minor’s claims was due to social pressure and societal policies. Justice Ryan was of the view that there has been a great evolution of the duty of care. Now, there are more people who are present to avail such claims. In order to allow them to claim it, they would have to be under the protective umbrella. But with many plaintiffs, it would be possible that the claims are exaggerated before the jury.

Extensions of Renslow: Inference drawn

The dissent presented before the Court in Renslow (1976) showed the practical and realistic prospects in the future if this case would be relied on as a precedent. Justice Ward was of the opinion that allowing such a case to be a precedent would put the defendant at a disadvantageous position and expose them to multiple claims of injury caused by genetic reasons as an excuse by the plaintiff. Justice Underwood was of the view that if this case is set as a precedent, then there would be no bar for actions leading up to prenatal injury. Such claims would have an adverse effect on the requirement of actionable negligence which proves legal duty.

This would lead to liability with no limit in cases of defect during birth. Thus tort law in this matter was at crossroads. While it is important to ensure the safety and security of innocent, helpless, and injured individuals, at the same time, it is necessary that the law does not put the defendant in an unfavorable position by allowing such claims to be entertained in the Court of law in its respective jurisdictions.

Summary of unborn plaintiff in law of torts

The cases like Dietrich (1884), Allaire (1990), Bonbrest (1946), Kelly (1953), and Renslow (1976), all helped to shape the concept of duty in the case of unborn plaintiffs. The two most important parts to claim action of tort are – there must be a legal duty towards the plaintiff, and, there must be a breach of such legal duty. But the existence of the duty and finding about it can only be determined by the Court. The Court cannot take just social reasons for determining and making any decision. There must be logical reasoning and legal interpretation in order to arrive at any decision.

Thus it becomes important to set proper regulations in place to regulate this matter specifically. In addition to this, a set years of limitation may be set in order to prevent the plaintiff from claiming for any loss or injury suffered over a long span of time. This can be done by introducing a factor of proximity of time and considering the time elapsed between when the tortious act had occurred and when such injury was realized. This also helps to prevent any erroneous claims. With the current advancement in technology, it is possible to prevent any injury to the fetus from the moment it is conceived, and, denying it, would be denying its existence.

At the same time the Court has to find if as a result of negligence, legal duty has been violated. But before that, it is more important for the Court to determine whether such a duty actually existed or not because it would be unfair for the courts to find negligence when there was no such duty. In addition to this, the Courts can set a standard measure by defining the limits of legal duty that could possibly be owed to a plaintiff who is unborn.

Omissions

Omissions refer to those acts in which the individual is to perform a duty, being bound to it but he fails to do so. Just like tortious acts give rise to lawsuits, so do omissions. The unique feature of omissions is the fact that the special relationship would also constitute to be regarded as an omission. Omission can be of several kinds. Omissions are categorized into the following types:

Claimant and defendant had a special relationship

The claimant is dependent on the defendant

In the instance where there is an omission by the defendant and the claimant is dependent on the defendant, the defendant would be made liable for it. It can simply be understood that guardians and parents are liable for any omissions to act in matters related to their child.

In the case of Carty v. London Borough of Croydon (2005), the plaintiff brought a claim that the defendant had failed to provide reasonable educational needs, given the fact that the plaintiff required special educational needs. The plaintiff’s claim was successful and the defendant was held liable for his breach of duty in providing adequate help in education to the plaintiff.

In the case of Savage v South Essex Partnership NHS Foundation Trust (2010), the patient named Mrs. Savage escaped the hospital for mentally ill patients. After her escape, she committed suicide. Her daughter filed on her behalf stating that the hospital violated her mother’s right to life and that it is evident as they allowed her to escape.

The Court was of the view that the hospital should have been observant and taken notice of the deceased’s condition and her being at a higher risk of committing suicide should have put her under supervision and taken the necessary steps to prevent her death. The hospital and its officials were held liable as they had a duty and obligation to ensure the safety of the patients and to ensure that their mental illness did not compel them to take drastic steps like ending their lives.

There exists any other relationship with the claimant

In the instance there is any other relationship with the defendant not specially defined through the dependence of the claimant on the defendant (as above), then, in that case, any omission would make the defendant liable.

In the case of Fowles v Bedfordshire County Council (1996), the claimant was using some of the mats in the gym after receiving instruction from the defendants. However, the defendant was unclear and inadequate in issuing the instructions and as a result suffered harsh consequences which led to serious injury when there was no supervision. The Court held that the defendant would be liable for this as the current relationship would be enough to hold them liable. And it was important to give proper instructions including limiting their unrestricted access to the equipment like mats without restriction.

In the case of Barrett v. Ministry of Defence (1995), there was a naval officer in the British service. Since they often engaged in drinking, he did so too. He drank excessively and fell unconscious, so he was taken to his quarters, as instructed by the duty officer. There, he was without anyone to observe him. He then choked on his own vomit and died as a result. His widowed wife filed for a suit. It was held that the Ministry of Defence had a relaxed attitude towards drinking excessively and did not enforce the rules and regulations for it in a strict manner. At the same time, the deceased was also responsible for his death as he failed to limit his drinking and drank beyond his capacity.

Third party and defendant had a special relationship

In the situation where there exists a special relationship between the defendant and the third party, and due to some reason, the third party ends up causing some kind of damage, then the defendant may be made liable for their actions even if they have not acted or did anything in that regard.

In the case of Home Office v Dorset Yacht Co Ltd (1970), a group of seven boys were sentenced to training at a place and placed under the custody of a group of three officers. These said officers did not take up any measures to prevent the boys from leaving or escaping the island. As a result, the boys took notice of this and took the chance and made the escape from the island and caused damage to the yachts parked on their way. The yacht owners sued the Home Office. The Court held that there was a duty of care under which the officers were required to prevent the boys from making their escape and/or damaging any property Thus there existed vicarious liability, that is the Home Officer was held liable for the negligence of the officers.

Danger created by the defendant is sparked off by a third party

In the case of Haynes v. Harwood (1935), the defendant had a horse. One day his horse was left on the street without any supervision. A boy saw the horse and threw a stone at it. As a result of being thrown the stone, the horse bolted out and while bolting out it headed towards several people on the street, in order to save them the claimant threw himself at them and injured himself. Subsequently, a suit was filed. The Court reached at the conclusion that the defendant is indeed liable in this case. The Court reasoned with the fact that the defendant was aware of the high chance the horse would escape and this would lead to danger.

Danger by a third party is not brought under control by reasonable steps by the defendant

In the case of Smith v. Littlewoods Organization Ltd. (1987), there was a cinema hall. One day it was vandalized by the children who went there, they also started a small fire there. One day the fire spread (to the building next door) and became bigger than intended. Since this act was done by children and the children cannot be sued, the owner of the building that was vandalized was sued. It was held by the Court that there is no liability for the vandalized building in this regard. Additionally, there was no knowledge to the vandalized building owner that their building was misused to such an extent.

The case of Clark Fixing Ltd v Dudley Metropolitan BC (2001), has to be read in comparison with Smith (1987) which was discussed above. In this case, a piece of land was owned by a company for construction, but this license was abandoned as a result, this land stood empty but was under the ownership of the council. The claimant’s land was right next to this empty land. One day a fire spread from the empty land to the claimant’s land. The claimant filed a suit against the defendant for the failure to bring the fire under control. The Court after careful consideration held that there was indeed a failure of the defendant, that is, the council which failed to prevent the fire from spreading from their premises to the claimant’s premises. Additionally, the council failed to exercise reasonable care and caution to prevent this and the damages were indeed the result of the council’s breach of duty.

Omissions by safety services

As there grew an evolving understanding of what would constitute as omissions, it became important to address the issue of whether safety services are to be held responsible in case of any omission which they are as per duty and services required to do so.

In the case of Capital and Counties PLC v. Hampshire County Council (1997) there were a series of three appeals combined and filed before the Court. Each of these appeals was connected to the fire department’s emergency service. In the first appeal, there was a building in which a fire broke out. This building was under the ownership of the claimant. The emergency fire department reached the scene and switched off the sprinkler system which led to the fire spreading even further. The Court carefully examined all three appeals. For the first appeal, the Court held that the defendant was indeed liable. They engaged in an act which worsened the condition of the fire and they did not take reasonable steps to control it. In the other two appeals, the court held that the fire department was not to be held responsible as there was no duty of care owed due to the restrictions laid down in their policy.

In the case of O.L.L Ltd. v. Secretary of State for Transport (1997), there were several people who got lost in the sea. In order to rescue them, the coastguard set off to rescue them. The coast guard did not know about the directions and got lost, so he asked another for the directions. Since the directions were unclear and vague, he was not able to perform his duty to the best of his abilities. The coast guard was held liable for this. The court dismissed the claim and held that the Coast Guard was not liable for this as the people who got lost in the sea were already in danger and the Coast Guard did not contribute to making the situation any worse than what it was. The Coast Guard was just trying to save those people who were in danger.

In the case of Kent v. Griffith (2001), the claimant was already diagnosed with asthma. One day unfortunately while the claimant was suffering from such an asthma attack, he reached out for emergency ambulance services. The ambulance took around 30 minutes to arrive. During such a long wait for the ambulance, the claimant suffered from a respiratory arrest. The Court on listening to both the sides held that it was reasonably foreseeable that the situation might worsen given the claimant’s medical condition. It is also foreseeable that the claimant would suffer medical complications if the ambulance failed to arrive in a reasonable time. Additionally, it was also held that it can be concluded that the ambulance is an urgent requirement for the plaintiff given that the defendant accepted the call of the claimant.

Omission by public bodies

There are instances where there might be omission by public bodies.

In the case of Stovin v. Wise (1996), there was a big pile of rubble on a person’s land. Due to this, that person was not able to see the road clearly and properly. The public body of that area had knowledge about this issue. One day, a driver met with an accident at the same spot. The issue that arose was whether there would be any liability to the public body. The Court decided ultimately the public body is not liable. This is so because though the public body had the power to do certain acts including the issue here of removing the heap of rubble, they are not bound nor do they have a duty to act. Thus there was no negligence on the part of the public body.

In the case of Gorringe v. Calderdale (2004), the claimant was driving over a steep hill. The claimant could not see clearly over it. She continued driving as usual and crashed into a bus that was abandoned there. There was no warning sign there nor was there a possibility to drive carefully as the road ahead was unclear. The claimant held the local authority responsible for not taking up the task of putting any sign board there to warn drivers. The House of Lords held that in this case, the woman committed negligence to her own self, hence, the local authority was not responsible for it. Additionally, there existed no duty of care in this instance. The local authority owner has no duty to set up a sign or mark or even a board to warn the drivers about the problem ahead. They only had the duty and responsibility of managing the surface of the road and nothing beyond that.

In the case of Mitchell v. Glasgow City Council (2009), the neighbor and man got into a very heated dispute. The heated dispute took a violent turn as the neighbor attacked the man. As a result, the man feared for his life. In order to prevent the issue from escalating further, the council of that area decided it was in the best interests of the man to have the neighbor be moved to another place. When the neighbor came to know about this, in a fit of rage, attacked the man and the man died as a result of the injuries caused to him by his neighbor. The family claimed for the damages suffered as a result of negligence on the part of the council. The case went from the Court of Session and was then overturned by the House of Lords. The House of Lords ultimately held that the council was not liable for this. The council holds no duty or responsibility to protect the tenants and residents from any violent altercations by their neighbors.

Special relationships

The duty that the defendant owes towards the plaintiff is often determined by the commitments he accepts or the special relationships he owes specifically in relation to the plaintiff. The list of special relationships is not an exhaustive list and can be as follows:

Carrier and passenger
Innkeeper and guest
Inviter and invitee
Employer and employee
School and student
Landlord and tenant
Doctor and patient
Custodian or guardian and ward or child or minor
Designers and constructors

The general understanding under tort law is that the relationships do not hold any legal weight instead factors like negligence and duty of care owed are considered. But there are certain instances where such a relationship holds a special weight in determining tortious acts and liability of the defendant.

For example, if the plaintiff is a patient and the doctor is the defendant, the plaintiff and defendant are in a special relationship, and the defendant is obliged to provide and furnish the plaintiff with the necessary care which he would not be obliged to do in ordinary circumstances where they are both strangers.

The most important factor to consider is that one person has some special skills and expertise which he imparts and thus he forms a special relationship with the other party. As a result of this special relationship, the experienced party is able to foresee any injuries or harm and is required to act in order to prevent as per the duty of care he has to furnish towards the other party.

It becomes very important to form this special relationship in order for the experienced party to owe and undertake a duty to care for the other party. If the party does not form a special relationship with the other party, then it would not be obliged to owe any duty of care or undertake to do so. What differentiates the duty of care in a stranger’s case and the case of a special relationship is that for the stranger it is determined by law often termed as reasonable care whereas for the special relationship, it would arise from the undertaking they take.

To understand this better, the Court also came up with changes and focused on the injury that could happen as a result of the foreseeability. The tortious acts arising in special relationships take the route of the traditional nature of tort principles that allow the plaintiff who has experienced any harm or injury to claim for the same as a result of his vulnerability that arose due to the negligence on the part of the defendant.

For example in the industry of construction, there exists a special relationship between contractors and designers. Now, if the designers are given the opportunity to engage in a suit of direct cause of action against such designers, then this would quite evidently interfere with the obligations laid down in their contract. This interference would also indirectly contribute towards the increase in costs of construction, there might be conflicts in the workspace of both. But at the same time, this protects the contractors from having to face rude behavior of the designers and keeps the designers bound to their contractual obligations and professional ethics.

Special relationships at the same time stand apart from the general tort under traditional rule as under traditional rule, according to which, if there was foreseeability there was duty if not there exists no duty in question. Thus purely economic losses were not compensated. But in the cases of special relations, it can be applied for purely economic losses as well, that is, purely economic losses are permitted for recovery claims under special relationships because it is a special circumstance. Thus special relationships clarify and address all the concerns regarding traditional tort rules including purely economic losses by imparting the principles under traditional tort law to allow claim for recovery and apply it to such special circumstances.

In the case of Aikens v. Debow, 208 W. Va. (W. Va. 2000), Aikens the plaintiff, sued Debow and another, the defendants for negligence. This negligence was caused by them when the nearby overpass was closed off for repairs and maintenance thus customers were not able to access the motel of Aikens. Aikens observed a significant drop in his business when this happened. Thus, he sought recovery from economic loss by filing a lawsuit. The most pertinent issue in question was whether or not Aikens has any entitlement to recover loss of economic nature under torts in this instance. The Court ruled that in this case there exists a question of duty which the defendant owes towards the plaintiff and is to be decided by the Court and not the jury present, as it requires legal interpretation.

In the case of Biscan v. Brown (Tenn. 2005), Biscan, the plaintiff attended a party at the house of Worley, the defendant. Biscan was a minor when she attended the party. Though Worley had not invited them, he allowed them inside and was aware of her being a minor. He was also aware that drinking at the party and subsequently the minors would also be drinking. While Worley asked the minor, kids, and those who drank to stay back or drive with a driver who was not intoxicated. But, Biscan drove off with Brown who was intoxicated and this led to an accident, Thus she sued both Brown who was the driver and Worley, both the defendants in the case. The Court held that Worley indeed had a duty to protect the minor guests from drinking and driving and any other consequences that would arise out of it. But by allowing and permitting such minor guests, he extended his duty to all such guests. The Court also stated that there arises no duty of Worley towards another third party injured as a result of alcohol that was consumed. Worley did indeed engage in an illegal act by providing alcohol to minors at the party. The Court was also of the view that Worley’s duty to provide reasonable care and take proper cautions to prevent the guests at his party from causing any harm to any other third person was known to him. Thus the decision was given in favor of the plaintiff.

To put it in simple terms after the whole discussion above, in order for the plaintiff to maintain a claim of action for purely economic losses, the plaintiff has to make sure it presents to the Court satisfactorily that there was a duty owed by the defendant that arose due to the a contract or any special relationship between the plaintiff and the defendant.

Statutory duty and powers under it

In order to understand the relationship between statutory duty and tort, it is important to understand what statutory duty means. In simple terms, statutory duty is the duty that arises as a result of any law that is written or any statute that has been framed. A statutory duty defines whom it applies to, who is required to execute it, and what would amount to its breach. Thus, if there is a breach, that is, the absence of meeting the standards under the statutory provisions, then in that case, it would amount to a civil action under the law of tort. This is so because it causes harm or injury and damages can be claimed by the party against the party which failed to meet the standards as it falls under negligence.

Statutory duty arises when one party fails to abide by the statutory provisions and thus breaches the statutory duty which results in injury or harm to the plaintiff who falls in the class of persons that the statute aims to provide safety and protection to. In the case of Woodrow v. Woodrow (Ind. Ct. App. 1961), the same was discussed. In this case, the plaintiff was helping the defendant to make repairs on the truck late at night. In order to make such repairs the truck was parked on the side of the road but without any flares to notify other drivers and as required to be done so by the statute. While he was making such repairs, another driver crashed into the truck of the defendant which injured the plaintiff. The plaintiff sued the defendant. The Court after examining the evidence and hearing both sides, decided the defendant is indeed liable for the injury of the plaintiff. This is so because the plaintiff falls in the class of persons that the defendant owes a duty of care to and they are protected by statutory provisions. The statutory provisions aim to prevent such injuries including the one caused in this case.

For cases of tort under statutory provisions, it becomes essential to determine whether there were any statutory provisions in place that have been breached, what was the legislative intent behind these statutory provisions and to ascertain the proximate cause of breaching such statutory provision

Occupier’s Liability

Occupier is simply a person who has enough power and control over a certain premises. The occupier often grants permission to people to enter the premises and such people whom he or she grants permission to are known as visitors, invitees, and licensees. The people who enter such premises without the permission of the occupier are known as trespassers. Occupiers liability is simply the duty of care imposed on the occupier to take proper care and exercise due caution towards the visitors on his or her premises.

Thus the occupier can be made liable for incidents involving injury to visitor, death of visitor, or any other harm to the visitor given the fact that it has occurred in the premises of the occupier. The occupier can take the necessary steps in order to remove, change, and regulate their duty towards such lawful visitors. For example, if a trespasser falls down from the staircase, then in that case the occupier would not be held liable. But, if the trespasser injures himself from the electric fence surrounding the premises of the occupier, the occupier would be held responsible for it. The general rule is that the occupiers do not owe any duty of care to the trespassers because they do not have permission to enter the premises of the occupier. The occupier only provides permission to those individuals whom he or she can provide reasonable care and caution as the occupier.

Pure mental harm or nervous shock

Pure mental harm or nervous shock is a unique form of negligence that requires a different kind of duty of care to be provided along with reasonable care and caution to be taken beforehand in order to prevent such kind of injury. Pure mental harm or nervous shock is also interchangeably used with mental anguish or emotional distress under the law of tort. In order to claim for compensation as a result of negligence which resulted in nervous shock or mental harm, the following elements must be satisfied:

There must be a duty in existence that has been breached that must be owed to the plaintiff or there must be a breach of the said such duty by the defendant who has acted intentionally or recklessly.
There must be a causal link between the breach occurred and the shock it resulted in.
The shock that it resulted in must not be too remote of a consequence that would make it difficult for the defendant to foresee.

There are two instances where the plaintiff can claim compensation and hold the defendant responsible. In the first instance, the defendant has acted in an unreasonable manner. The defendant has acted with intention in a reckless manner and such said acts can be classified as extreme and outrageous. These acts caused the plaintiff mental anguish and therefore the whether defendant acted in the bounds or not would be decided by the jury. The jury would determine whether said such acts exceed the bounds of decorum that usually are followed in a civilized society. The other instance is where the defendant owed a duty of care to the plaintiff but failed to take reasonable care and caution and breached such a duty which caused emotional distress to the plaintiff.

Situations exempt from duty of care

Barristers

Barristers and lawyers and attorneys alike are not completely exempt from the duty of care as it depends on a situation to situation basis. Generally, a lawyer owes a duty of care to his clients to the extent of the purpose he is hired for and not beyond that. For example, if a lawyer is hired by a sales manager to represent him and negotiate his divorce, then the lawyer cannot be asked to represent him in a matter relating to professional negligence by the sales manager unless he is hired for that purpose.

Thus the duty of care in case of an attorney is determined by the purpose of hire which ultimately determines the scope of representation.

The general process is that the client seeks for advice from the lawyer. If he finds the lawyer fit to represent him, the lawyer and client sign an agreement to allow the lawyer to represent the client for the said purpose only. But this does not make the requirement of a lawyer to represent the client in any matter. It is restricted to the matter they had signed an agreement for.

Wrongful Conception or Pregnancy

Wrongful conception or pregnancy occurs when the defendant is required to perform contraception or sterilization. The defendant has failed to take reasonable care and caution while exercising this process which has led to the birth of a child that is healthy and free from abnormalities. In the case of wrongful conception or pregnancy, the injury is caused at the time of conception itself which the parents were hoping not to experience. This is so because they have undergone processes that prevent unwanted pregnancies.

Wrongful conception or pregnancy is often caused by the failure of the sterilization process or the negligence on part of the doctor performing the said sterilization process. The main reason families undergo these sterilization processes is to regulate the number of members in their families and prevent any unwanted pregnancies but the failure of the process either in its efficacy or the doctor administering the process has resulted in an unwanted pregnancy.

As a result of this, four concepts evolved, namely:-

Benefits rule

The benefits rule is a legal concept that accounts for the costs of the benefits the parents would likely experience if they have and raise a child as a measure for the costs of damages. It can be found under § 920 of the Restatement (Second) of Torts (1979). The general understanding is that the plaintiff has some special benefit conferred to him, and due to the acts of the defendant, such benefit was harmed in the process and therefore in order to decrease the harm caused, compensation is provided. In order to measure such compensation, the benefit rule is used as a medium of measure. The benefits rule aims to strike a balance between preserving the family system that exists in the United States and providing adequate compensation for the tortious act by the defendant that harmed the victim.

Limited liability rule

The limited liability rule is widely followed across states in the United States. The rule of limited liability is applied in instances where the sterilization process undertaken by the plaintiff has failed to prevent pregnancy, and it is related to the pregnancy and delivery of the child. The limited liability rule takes into consideration the benefits rule as well. The idea behind this rule is that there might be some positive effect from the pregnancy which was unplanned. In instances of wrongful birth, special care is required to be undertaken for the child and in order to do so the Courts assist by determining the costs and taking factors into consideration like the abnormality of the child which might require more money and care.

Full recovery

Under the full recovery method, the parents are able to recover all the expenses related to raising and bearing a child. The same generic rule is applied here, that is, the parents underwent any sterilization or contraceptive or abortion procedure but the child was still born after it. Then in that case they can claim for the damages. Additional costs are provided in case any abnormalities are found in the child.

But these costs are accounted for only till the child reaches the age of majority in the United States which is 18 years. The age of majority is 19 years in states like Alabama [Refer Campbell v. Campbell (1986)], and Nebraska. And, it is 21 years for Mississippi. Since it accounts for costs till the age the child reaches majority, the amount is huge and considered to be quite generous.

No recovery

Under the no recovery theory, the parents are not allowed to claim damages arising out of wrongful birth or wrongful conception. The no recovery rule is applied only when it goes against the public policy, harms and injures public morale. The no recovery theory is applied as the parents want to take advantage of the legal system that imposes heavy punishment and costs on those defendants who are found to have failed in exercising the due process of sterilization, contraceptive or abortion. Parents intentionally engage in any sterilization, contraceptive or abortion that they know would be unsuccessful. And after the conception, they claim for damages against the accused or defendant. A no recovery theory generally increases the scope of harm that is caused by a health physician.

Wrongful Life

Wrongful life is when the child that is born has birth defects or has any genetic disorder that the health physician has failed to notify the parents responsibly. Such a notification is important because if the parents had knowledge about such a condition of the child, in ordinary circumstances they would have chosen to abort the child.

But there exists a tussle between pro-life, anti-abortion activists and the parents of such children. While pro-life and anti-abortion activists argue that all lives should be protected and abortion should not be granted, the concern of the parents should also be understood. Firstly, the lack of proper notification of the child’s condition makes the parents unprepared for taking care of a child who has such a condition. Secondly raising a child with such a condition requires the parents to undertake extra care which requires money which many parents might not be in a position to do. Thirdly the child is stripped of the opportunity to have an ordinary childhood due to the trauma caused to him as a result of this.

Protection of Volunteers

Volunteers have legal safeguards in place to prevent them from facing any legal action or being sued holding them accountable for the damage or harm caused during the time they were volunteers. The Volunteer Protection Act of 1997 also known as VPA aims to protect the volunteers from facing any lawsuit that would arise during the time they were volunteering. The main objective of the Volunteer Protection Act is to promote and encourage the act of volunteering among individuals by protecting them from it. The Volunteer Protection Act quite simply provides the volunteer with the required immunity and safeguards them from liabilities that would arise as duty of care that would ordinarily be imposed on them but under the said Act makes them immune.

Liability for animals straying onto the highways

Stray animals are allowed to roam freely in the open in a few states only. The states that allow animals to roam around free are known as fence out states. States like Montana, New Mexico, Texas and Wyoming are known as fence out states for such reasons. Due to them being fence out states, the owners of such animals are not liable for any damages that are caused by such animals to the property or any trespass by such animals.

The states which do not allow animals to roam around freely and require the animals to be fenced or in sheds or inside any property premises are known as fences in states. All the states other than those mentioned above are fence in states.

Conclusion

Thus duty of care is an important concept under the Law of Torts. It envisages imposing a responsibility on individual(s) to take proper and reasonable care while exercising their actions in order to prevent any harm that could be caused to the plaintiff, in order to prevent a tortious action from being brought forward.

The action of duty of care does not lie before only the plaintiff and defendant but it also extends to other different natures of relationships like that of an unborn child. But there are certain exemptions provided as well like that of special relationship of plaintiff and defendant, wrongful conception or wrongful life, activities of volunteers, animals straying on highways, barristers and attorneys (in certain cases) etc.

With tort being a commonly sought civil action against any harm caused, new categories of duty of care are being evolved to cover and it addresses whether the relationship between the plaintiff and the defendant, or both the parties at dispute comes under the scope where one party owes a duty of care to another.

Frequently Asked Questions (FAQs)

What is the duty of care?

Duty of care is simply the legal duty that is imposed on an individual or an entity to ensure due and reasonable caution in the exercise of their actions. Duty of care ensures that the person engaged in such actions ensures that he does not cause any foreseeable harm by taking necessary steps to prevent it from happening.

How are negligence and duty of care connected to one another?

Negligence and duty of care are connected to one another. Negligence is simply the breach of such duty of care. In order to show there was negligence on the part of the accused, several elements have to be proved one of which is duty of care which includes duty, the breach of it, the cause in fact, the proximity of such cause and damages caused. Negligence is the result of absence of duty of care.

Are there exemptions to duty of care?

Yes, there are various exemptions to duty of care and this includes special relationship of plaintiff and defendant, wrongful conception or wrongful life, activities of volunteers, animals straying on highways, barristers and attorneys (in certain cases) etc.

References

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