Duty of Care (General)
What is the Duty of Care (General)?
A defendant owes a duty of care to act as a reasonable person would to avoid foreseeable risks of harm to others. This threshold element must be established before any negligence claim can proceed.
Source: Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928)
Definition
Duty of care is the foundational element of any negligence action. It requires that the defendant had a legal obligation to conform to a standard of conduct for the protection of others against unreasonable risks of harm. Without establishing duty, a negligence claim cannot survive regardless of how egregious the defendant's conduct may have been.
The general rule, articulated most famously by Judge Cardozo in Palsgraf v. Long Island Railroad Co., is that a duty of care is owed only to foreseeable plaintiffs — those within the zone of danger created by the defendant's conduct. The scope of duty is determined by the relationship between the parties, the foreseeability of harm, and public policy considerations. Courts use various tests to determine duty, including the Cardozo foreseeability approach and the Andrews universal duty approach.
Duty is a question of law for the court, not a question of fact for the jury. This means judges decide whether a duty exists based on the nature of the relationship, societal expectations, and policy factors. The Restatement (Third) of Torts adopts a general duty of reasonable care for all persons whose conduct creates a risk of physical harm, with limited categorical exceptions (such as the traditional no-duty-to-rescue rule). Understanding duty is critical because it serves as a gatekeeper for negligence claims and shapes the entire analysis that follows.
Key Elements
- 1A legally recognized relationship or situation giving rise to an obligation
- 2Foreseeability of harm to the plaintiff or class of plaintiffs
- 3The plaintiff must be within the zone of danger created by defendant's conduct
- 4Public policy supports imposing an obligation of care
- 5The duty must be determined as a matter of law by the court
Landmark Cases
Palsgraf v. Long Island Railroad Co.
248 N.Y. 339 (1928)
Established the foreseeability test for duty — a defendant owes a duty only to foreseeable plaintiffs within the zone of danger.
Donoghue v. Stevenson
[1932] AC 562 (House of Lords)
Established the neighbor principle as the foundation for duty of care in common law, extending duty beyond privity of contract.
Tarasoff v. Regents of University of California
17 Cal.3d 425 (1976)
Created a duty for therapists to warn identifiable third parties of foreseeable threats by patients, expanding special relationship duties.
Rowland v. Christian
69 Cal.2d 108 (1968)
Abolished the traditional categories of entrants on land and adopted a general duty of reasonable care for all visitors in California.
Exam Tips
- Always address duty first — if there is no duty, the analysis ends and you save time on the exam.
- Distinguish between the Cardozo approach (duty owed to foreseeable plaintiffs) and the Andrews dissent (duty owed to all, with proximate cause as the limiting factor) and note which your jurisdiction follows.
- Watch for special relationships (innkeeper-guest, carrier-passenger, employer-employee) that create affirmative duties beyond the general standard.
- Remember that duty is a question of law, not fact — frame your analysis accordingly.
Common Mistakes to Avoid
- Confusing duty with breach — duty asks whether an obligation exists at all, not whether the defendant failed to meet the standard.
- Assuming everyone owes a duty to everyone — the general rule is that there is no duty to act affirmatively to protect others absent a special relationship.
- Failing to consider the policy-based limitations on duty, such as the economic loss rule or the rule against duties to unforeseeable plaintiffs.
Memory Aid
DUTY: Defendant Undertakes To safeguard You (but only if you are foreseeable).