Negligence Tort Duty Of Care Studies

Duty of care is a very important concept in the negligence law of Anglo-American law.When a plaintiff files an action on negligent tort, he must make the court believe that the defendant has violated the duty of care he should have taken to the plaintiff. The concept has been adopted by the Continental law.The history of duty of care in the Anglo-American law has been disclosed that there is a trend to enlarge the range and scope of duty of care. However, the trend in the Continental law is on the contrary.The criterion to decide whether a defendant has violated his duty of care to the plaintiff, or that to decide negligence, is the "reasonable person standard". Actually, the reasonable person standard is an objective one, i.e. whether the behaviors of a defendant are negligent is judged by an outside standard and not by the subjective capability of the defendant himself. The reasonable person standard in the negligent tort actions of the U.S. is flexible, applicable and open, which can develop with the actual needs. But there still are some problems. For example, it is lack of predictability and difficult to apply sometimes in practice.It is generally believed that a court adopts total risk-and-income standard when deciding the negligence of the parties in negligent tort cases. In fact, it is to judge the negligence of the parties by way of economic analysis. The factors needed are usually the possibility of causing harm, the degree of the harm, the cost for preventive measures and the social value of the actor's action.Currently, China almost has no rules of tort law concerning the duty and its criterion for negligent tort. As there are no definite provisions about the duty and its criterion for the judgment of negligence in Chinese laws and judicial interpretations, different scholars have different views. Therefore, the result for the judgment of negligent tort is disordered and not unified in our judicial practices. As to the Suggestion Draft of the part of Tort Behavior of the China Civil Law Code, there are still not definite provisions about the duty and its criterion for the judgment of negligence. The author believes that such problems can be conquered and the relative rules of duty of care in negligence law should be written in the Draft of the part of Tort Behavior of the China Civil Law Code.