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Duty of Care

Negligence: Duty of Care

To establish negligence on the part of a defendant, a plaintiff must first establish that the defendant owed the plaintiff a duty of care. The duty of care is a legal duty owed to a particular individual or the public at large, which, in most circumstances, requires the exercise of reasonable care. Generally, the court, not the jury, determines if the defendant owed the plaintiff a duty of care.

Because every act or circumstance is different and because the reasonableness of someone’s carefulness can depend on the situation they face or the resources that are available to them, one’s duty of care shifts depending on the situation. This section will only paint the duty of care in very broad strokes. Specifics are best left to an attorney during a consultation.

In South Carolina, a legal duty may be established in many ways, including by statute, contract, relationship, property interest, or other circumstance. If a defendant does not owe a plaintiff a duty, the plaintiff cannot satisfy the elements of negligence and cannot prevail in a negligence action.

Foreseeability

The duty of care depends on several variables. First, a person is only required to consider the foreseeable risks of his or her conduct. Thus, there is no duty to prevent unforeseeable injuries to a foreseeable victim or foreseeable injuries to unforeseeable victims.

Foreseeability itself, however, does not give rise to a duty itself. The duty of care requires that a person act reasonably to mitigate foreseeable risks.

Reasonableness

South Carolina courts have applied two distinct tests to determine whether a defendant acted reasonably. The first is the calculus of risk standard. The second is known as the reasonable person standard. Read about both below.

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Calculus of Risk

Negligence law can become very complex and convoluted. To give you an idea, some jurisdictions have used a formula termed “calculus of risk” to “help” make this determination. Just to give you an idea of how convoluted it can become:

The calculus is demonstrated by a mathematic formula: B < P * L. The formula has been applied in some cases in South Carolina. In this formula, B equals the burden or cost of preventing an injury. One can also think of B as the cost of the duty of care itself. P equals the probability that the injury-causing event will occur if the person that may owe the duty does not undertake the burden of preventing it. L equals the costs of that injury if it occurs. P multiplied by L determines the likely cost of a failure to abide by a duty of care. Under the B < P * L analysis, if the cost of the duty of care exceeds the cost of the probable injuries resulting from failing to abide that duty, then that duty is not owed and there can be no breach. If the burden of the duty is less than the costs of the probable injuries, then the defendant does owe the duty.

This calculus is more theoretical than practical. It is hard to determine the true value of each variable. Thus, courts more commonly look to the reasonable person standard in assessing whether a duty was owed.

The Reasonable Person

South Carolina courts have stated that negligence is the failure to do something that a reasonable and prudent man would do under the circumstances. This is an objective standard. When deciding whether a defendant acted reasonably under the circumstances, the court will first focus the jury on the defendant’s conduct. If a reasonable person would not engage in the defendant’s conduct, even if that conduct is what a person would normally do, then they may be found to breach their duty.

Where One May Have to Act More Than Reasonably

When a person does an activity for which they have special skills or training, then they are held to a higher standard – one that asks them to act as a reasonable person with their skill or training.

Special duties of care can also apply when there is a special relationship between the person that owes the duty of care and the person that benefits from it. Common carriers, such as transportation services, owe a higher duty to their passengers. Innkeepers owe a higher duty to their guests. Businesses owe a higher duty to their patrons. In some circumstances, an employer may owe an employee a higher duty. K-12 schools owe their students a higher duty. Landlords may owe their tenants a higher duty.

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