Duty of Care

The person or company that injured you must have been in a position in which the law imposes a responsibility that they act or refrain from acting in a way that would cause foreseeable injury to you.

Simple example of duty:

You are playing catch, and your ball goes over a fence onto someone else’s property. The gate is locked, and a sign says, “Danger–Do not enter; ring bell.” You ring the bell, and the owner opens the gate for you, inviting you to his property. At this point, the owner owes you a duty to act in a way that avoids foreseeable injuries to you while you are on his property. So, if the owner has allowed broken glass to accumulate in his yard and you step on it, you may be able to recover damages if the owner failed to stop you from stepping on glass either by, for example, warning you that there is glass or in the area or, better, by making sure the area was clean of glass before letting you walk on it.

Simple example of lack of duty:

You are playing catch, and your ball goes over a fence onto someone else’s property. The gate is locked, and a sign says, “Danger–Do not enter; ring bell.” You ring the bell, but nobody answers. You decide to climb the fence to retrieve your ball. When you land on the other side, you land on broken glass, severely injuring your feet. The owner of the property is likely not responsible for your injuries because the owner had not invited you to his property and was not in a position such that the law would require him to act in a way that would protect you from hurting yourself. Under the law, the property owner is said not to have owed you a duty of care.

There are four levels of duty in tort law and, therefore, in personal injury law.

1. Duty to Refrain from Intentional Injury: When one person injures another intentionally and without any legal justification, the injury is caused wrongfully in the eyes of the law, and the injured person has a right to recover damages. (Note, a person who intentionally causes physical injuries may also be liable under the criminal law.)
   • Example: Person A, without any justification, punches Person B, breaking her nose. Person A may have committed an intentional tort, and Person B may recover.
   • Example: Person B is not famous in any way. Person A publishes a blog article knowing it is false, in which he states that Person B is a prostitute and has a variety of sexually transmitted diseases. Person B loses her job, and her husband divorces her. Person A may have committed the intentional tort of libel.
2. Negligence: Generally, people have a duty to refrain from negligent behavior—that is, if particular conduct or lack of conduct that doesn’t have an intent to injure others, but creates a foreseeable risk of injury to others, you are required (you have a duty) to refrain from acting in that way.
   • Example: House owner knows that broken glass has accumulated on the walkway to his front door, a path that is open and unfenced; the owner just doesn’t feel like cleaning the glass. It is foreseeable that anyone walking to the door may step on the glass and hurt themselves. Owner has a duty to remove the glass, or otherwise make the walkway safe.
   • Example: Person A owns a bakery and spills a bucket of oil on the floor. An employee of Person A mops the floor, but doesn’t use soap and doesn’t warn customers that the floor is slippery. An hour later Person B slips on the floor, hurting her back. Person A and his employee may have acted negligently.
3. Recklessness: In some cases—usually involving government employees, like police or fire fighters while working in emergency situations—the duty is to refrain from reckless behavior. That is, they have a duty to not act with utter disregard to the safety of others, even while they are doing their own, dangerous work.
   • Example: A police officer is called to the scene of an armed robbery, and begins speeding down the street in his car to answer the call. The officer is permitted to speed through the streets and through red lights, so long as he does so without being reckless in regard to whether others will be injured. The officer turns on his lights and siren while driving to an emergency. Even if he hits another car in these circumstances, the police officer may not be liable because in warning others that he was approaching, he was not being reckless.
4. Strict Liability: In still other cases, those involving manufacturing defects in products, there is strict liability—that is, if a product defect causes injury, or if merely using a product in the manner it was intended to be used causes injury, the manufacturer is liable without proof of negligence or even recklessness.
   • Example: A person buys a power lawn mower from a chain hardware store. The mower is manufactured by another company. Owner gets home and turns on the mower, exactly as stated in the instructions. It catches fire, severely burning the owner. The manufacturer’s duty in such cases is to not place a product in commerce that is defective. The fact of the fire itself, without more evidence, can be proof that the manufacturer breached its duty.

Will it be difficult for my lawyers to establish that the person who injured me had a duty to me?

In reality, duty is not a high standard—in many everyday situations (driving a car, doing lawn work, manufacturing products, keeping stores safe for customers, delivering medical care), we all owe various other people a duty to avoid hurting them by our negligent behavior.

Just remember, however, there are situations in which one person does not owe a duty to another. In those situations, if an injury occurs, there is no right to recover damages. A lawyer will be able to determine whether the person or company that injured you owed you a duty of care and what level of duty (negligent, reckless, strict liability) that person or company owed.

I think I have been injured by the wrongful conduct of another:

• Seek medical attention immediately
• Document your claims as thoroughly as possible
• Your time to sue is limited; contact a personal injury lawyer ASAP