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What does common law duty of care refer to? My gut tells me it is just another way of referring to the reasonable/prudent person test but I am not sure.

  • Did you check any other resources apart from your textbook? – Greendrake Dec 24 '18 at 6:51
  • @Greendrake I consulted friends and class notes. – S J Dec 24 '18 at 6:57
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There was no common law duty of care. And then there was. Because the common law changes.

When it changed for negligence was 26 May 1932 when the House of Lords handed down their decision in Donoghue v Stevenson.

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    Im pretty sure the house of lords holds no sway over the usa. – Andy May 24 at 18:59
  • @Andy and you would be wring. The USA and England are both common law countries (among most of the ex-British Empire) and their courts (which the House of Lords can act as) still look to each other’s decisions as persuasive precedents. If you read the judgements they will often cite each other’s (plus cases from Canada, Australia, Singapore etc.). The common law concept of negligence began in Scotland and spread to the rest of the world. – Dale M May 24 at 22:02
  • They can do that but they don't have to. US courts are not bound by the decisions of the house if lords. And until a US court ultimately rules on something like negligence, the house of lords is irrelevant. To answer this question you should be citing a US court case since the question is tagged united states. – Andy May 24 at 22:27
  • @Andy the ‘supreme’ court in every common law jurisdiction holds “sway” over all other common law jurisdictions- particularly the big 2 on either side of the Atlantic. I deliberately mentioned “persuasive precedent” even if they don’t follow each other’s decision they will often explain why the law is different here rather than there - that’s “sway”. – Dale M May 25 at 3:00
  • Sway was an incorrect choice of word. I explained what I meant in my second comment though. Until a US court rules on something like negligence (perhaps taking a UK ruling into account), what the house of lords says isn't relevant in the US. So again, a US court case reference would answer the question, not citing a UK case. – Andy May 26 at 14:02
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Case to look at:

The case you want to look at is MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). Prior to this case, privity of contract was required to impose duty on a defendant. This case held that a carmaker's liability for a defective product reached beyond the immediate purchaser of that car.

Judge Cardozo eliminated that privity barrier to recovery and stated:

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequence to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we need to go for the decision of this case. ... If he is negligent, where danger is to be foreseen, a liability will follow.

What does the duty of care refer to?

The duty of care requires you to act as a reasonable person, acting under similar circumstances, would act. This is the general duty applicable in all negligence cases. Sometimes, however, there is a special duty imposed on a defendant by case law or statute in place of or in addition to the general duty (one simple example is a law requiring all residents of a city to shovel the snow on the sidewalk in front of their house after snowfall). Other variations to the level of care a duty imposes may include common carriers, doctors, etc.

To find a duty of care, a few states simply consider whether harming the plaintiff was a foreseeable consequence of the defendant's actions. Many more use some sort of multi-factor test to determine this. A California case, Rowland v Christian, 69 Cal. 2d 108 (1968) laid out this set of 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

As of about 8 years ago, "43 states used a multifactor analysis in 23 various incarnations."

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