Torts I


A duty of care is a responsibility to another person that arises from circumstances that create a risk.

Everyone owes a duty of care to all reasonably foreseeable plaintiffs.

A person's duty of care is to use reasonable care under the circumstances. This is also known as a person's standard of care.

Standard of Care

The standard of care required of people is that of what a reasonably prudent person would do under the same or similar circumstances.

The person whose conduct is being evaluated is deemed to have the knowledge that the ordinary prudent person would have.

The standard of care of a person in an emergency is that of a reasonably prudent person in that emergency.

  • The emergency must be sudden and unforeseeable.
  • The emergency must not be of the defendant's own making.

If reasonable precautions can be taken without reducing public benefit, standard of care requires that such precautions must be taken.

Disabled people have the same standard of care as abled people.

The reasonably prudent person has the same physical characteristics as the defendant.

Mentally ill people are held to the same standard of liability. A minority of states make an exception for sudden mental illness.

The majority standard for children is that of "what it is reasonable to expect of children of like age, intelligence, and experience."

  • This should not be applied when the child engages "in an activity which is normally undertaken only by adults, and for which adult qualifications are required."

    Children engaging in inherently dangerous activities normally undertaken by adults are held to an adult standard of care.

Children under five are incapable of negligence under the 3rd Restatement.


A professional is a worker in a business or profession that requires technical knowledge.

Expert testimony is needed in technical cases.

Malpractice is failing to meet professional standard of care.

A professional is held to the objective minimum standard of care of a reasonably prudent member of that profession under the same or similar circumstances.

  • Includes knowledge, training, and skill of an ordinary member of that profession

Lawyers who act in good faith and an honest belief that their advice and acts are well-founded and in the best interest of their client are not liable for mere errors of judgment or mistakes in points of law not yet settled by a court of last resort in his state and on which reasonable doubt may be entertained by well-intentioned lawyers.

Lawyers' conduct may be questioned in:

  • Possession of knowledge or skill
  • Exercise of best judgment
  • Use of due care

Remember, causation still must be shown for negligence.

Medical Malpractice

The standard of care for medical malpractice is that degree of reasonable care and skill expected by ordinary members of that profession under the same or similar circumstances.

Locality Rule

The locality rule states that the standard of care of medical personnel is that of a practitioner in good standing in the local community in which the practitioner practices.

The majority of jurisdictions have adopted a "similar community in similar circumstances" test instead.

Some jurisdictions have also done completely away with the locality rule and adopted a "national standard," especially for board-certified specialists.

Rules of Medical Malpractice
  1. One licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average member of the medical profession in good standing in the community in which he practices, and to apply that skill and learning, or if he does not apply it, he is guilty of malpractice.
  2. Before a physician or surgeon can be held liable as for malpractice, he must have done something in his treatment of his patient which recognized standard of good medical practice in the community in which hie is practicing forbids in such cases, or he must have neglected to do something which such standard requires
  3. In order to sustain a verdict for the plaintiffs in an action for malpractice, the standard of medical practice in the community must be shown by affirmative evidence, and, unless there is evidence of such a standard, a jury may not be permitted to speculate as to what the required standard is, or whether the defendant has departed therefrom.
  4. Negligence on the part of a physician or surgeon in the treatment of a case is never presumed but must be affirmatively proven, and no presumption of negligence nor want of skill arises from the mere fact that a treatment was unsuccessful, failed to bring the best results, or that the patient died.
  5. The accepted rule is that negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it.
  6. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant is not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated form on the methods of treatment approved by the standard in that community.
Degrees of Care

Some jurisdictions have "degrees of care." This says that certain people who deal with things known to be dangerous, like people working with explosives, or those who have accepted a special responsibility towards other, such as common carriers, are held to a higher degree of care. This says that they are required to exercise "the highest degree of care" or "the utmost caution characteristic of very careful prudent persons."

Other jurisdictions reject degrees of care though. These would just say that the standard of care is the same, but since this standard is based off the circumstances, such people would merely have to use more care because of the circumstances.

Degrees of Negligence

Some jurisdictions used to distinguish between different "degrees" of negligence. This idea distinguishes degrees of negligence.

This idea has since been rejected by almost all states. It mainly only remains in the law of bailments and in automobile guest statutes.

Recklessness is a similar idea to gross negligence, but it has even higher requirements.

Privity of Contract

Misfeasance is when the defendant attempts performance but misperforms the contract.

Misfeasance attaches liability to misfeasor.


Nonfeasance is when the defendant made a promise but broke it without attempting performance.

Nonfeasance only attaches liability to nonfeasor in fraud cases.

A duty of care for a contract attaches when performance starts. Preparation is not enough. If both actions could be maintained, courts use either election or gravaman.

People generally do not have a duty to rescue, but if one starts to rescue, he has a duty to act like a reasonably prudent person would.

Special relationships where the defendant has actual ability and authority to control a third person impose a duty to rescue.

Special relationships that involve a level of control
  • Common Carrier/Passenger
  • Inn Keeper/Guest
  • Temporary Legal Custodian/Charge
  • Jailer/Prisoner
  • Teacher/Student
  • Coach/Athlete

People generally do not have a duty to warn or protect others from the criminal acts of a third person.

Such a duty can exist when a special relationship exists between the defendant and the plaintiff or between the plaintiff and the criminal actor.

Certain special relationships impose a duty to warn when the danger of third-party criminal acts is known or reasonably foreseeable:

  • Common Carrier/Passenger
  • Innkeeper/Guest
  • Employer/Employee

Others impose a duty to warn of third party criminal acts only where there is an "imminent probability of injury" from a third-party criminal act:

  • Business Owner/Invitee
  • Landlord/Tenant

A duty to warn may exist based on particular knowledge or a special reason to know of the particular type of injury towards a reasonably identifiable victim.

The majority says a duty exists to unborn children.