On Duty Of Care In Negligence

Duty of care is the core of negligence in the countries of Anglo-American Law System, and also the first element that must be established to proceed with an action in negligence. Inexistence of duty of care means inexistence of negligence and liability for tort. In the presence of duty of care, the breach of public interest may be regarded as torts. The wrongdoer has to undertake the tort liability in order to compensate the party whose right has been infringed for its losses. In the absence of duty of care, the damages to the interests of someone may not be held liable if the behavior accords with the public policy. Duty of care is a lever for controlling the social order and balancing the individual benefits, which can protect the legitimate rights by citizen, encourage the motivation of actors, realize the pursuit of social values and promote the economic prosperity. The continental law system is influenced by the objective trends in the definition of negligence and judging standard, meanwhile more and more countries begin to attach great importance to the concept of duty of care and adopt it. Therefore, this text takes United States tort law as the research object, which presented the most advanced level in Anglo-American Law System concerning duty of care. After the argumentation of concept, functions, its existence in certain circumstance, duty breach, this thesis will finally find the road which duty of care is introduced into tort law system of China.Except the introduction and conclusion, the thesis can be divided into five parts:Chapter one is the summary of duty of care. The concept of duty of care is a controversial issue, and this is due to its essence and attribute. This part will refine the concept and evolution of duty of care, and go on to determine its function and value in the negligence system.Chapter two expounds general tests for imposing a duty of care. Duty of care has two resources, one is developed through the jurisprudence of common law and the other is from the non-statute. To put it another way, the first standard of judging the establishment of duty of care is whether the wrongdoer meets the requirement of the obligation, and the second, whether the wrongdoer exercises the ordinary care of the reasonable person in the similar situation.Chapter three discusses the cases of inexistence of duty. The standard of establishing duty may not include all the circumstance completely. In order to exclude the absolute duty, courts will use several standards to rule out the unlimited liability.Chapter four explores the breach of duty. There are four elements of negligence: Duty, Breach, Causation and Damages, in which the most significant points are the first two. Courts take the standard of reasonable prudent person and aggregate-risk-utility into consideration to test whether the defendant owes duty to plaintiff. The standard by which the duty is measured also exerts important influence over the continent legal system.Chapter five elucidates the reference values of duty of care in negligence. American scholars have detailed analysis about the theory. Duty of care has been used in a mature way, which represents the most advanced level of Anglo-American Law System and sets a good example to China. This part will make clear three points: Being a country related to continent law system, China has a strong probability to adopt the theory of duty of care that comes from Anglo-American Law System. Duty of care not only represents the development of Anglo-American Law System, but also is a direction of continent law system. China already has the conditions and social resources to incorporate duty of care in China.The final conclusion comments on the draft of tort law, and gives suggestions about rebuilding the negligence tort liability which is the real problem to be solved in the Codification of civil law. For the close relationship with man's activities, tort law is the most active part in civil law system. The development of civil law in modern society has been mainly reflected in the changes of tort law, namely, the construction of tort law is typical of future developmental tendency of civil law. In summary, the deep-going research of duty of care in United States tort law has momentous theoretical value and tremendous practical significance.