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.
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.
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.