Duty of Care

In any personal injury or accident claim, the plaintiff must first prove that the defendant owned him or her a duty of care. The duty may be a duty to act or not to act. In short, the defendant is expected to act as a reasonable person would act under similar circumstances.

Reasonable Person

In defining how the reasonable person would act, courts weigh the same tort policies that they do in applying the Hand formula or, for that matter, in determining whether a duty exists in the first place. The reasonable person is not any particular person or an average person. The reasonable person standard means the reasonable person of ordinary knowledge and intelligence. The reasonable person standard does give some latitude to real people by considering the circumstances in which the defendant whose conduct is being judged had to act. For example, the reasonable person is subject to the same physical disabilities as the actual person. The conduct of a blind person is judged according to the conduct of a reasonable blind person, not a reasonable sighted person. A blind person is not unreasonable in failing to see and avoid an obstacle in her path, but she is unreasonable in attempting to drive a car.

When deciding whether the defendant’s conduct is the conduct of a reasonable person, what the defendant actually knew, experienced or perceived will play a vital role. For example John is tossing bags loaded with heavy metal parts onto a truck parked on a loading dock. He then notices two children playing near the truck and realizes that if he misses the truck while tossing the bags, the bags can fall on the children. But he continues to do so and one bag misses the truck and strikes the children. In this case, the fact that he was aware that the children were playing nearby will be an important factor when deciding whether John acted as a reasonable person.

Besides actual knowledge, another factor that can play an important role is knowledge that everyone in a community is expected to know. For example John would be expected to know that children can be injured if they are hit by a bag loaded with heavy metal parts.

Standards for the Care of Children

The courts apply a different standard for children. The court will compare the actions of the child against how a child of the same age, intelligence and experience. Sometimes if the child is engaged in an adult activity, the court will apply the general standards applicable to adults in similar activities.