A Study On The Judgment Standard Of The Breach Of Duty Of Care In American Tort Law

In the United States, when a plaintiff files on an action on negligent tort, he must make the court believe that the defendant has violated the duty of care about the unreasonable risk and the duty of care he should have taken to the plaintiff. The action by the defendant is the fact cause or law cause of the harm results which the plaintiff suffered. And there is actual damage. Therefore, how to judge whether a defendant has violated his duty of care becomes the key to issue to make sure whether he should take the responsibility of unintentional tort.From the precedents and theories of the United States, the criterion to decide whether a defendant has violated his duty of care to the plaintiff, or that to decide negligence, is the "reasonably prudent person standard". Actually, the reasonable person standard is an objective one, 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 merit of the rules is strong flexibility, good convenience, opening and go along with the age, the shortage is that the lack of the predictability and hard to operate in practice.So in the judicial practices of the United States, the courts often consider the two factor, one is the actor himself, the other is factor which besides the actor. For the actor himself, the court often consider the ages, the flaw of the body, the flaw of the mental and the professional skills. To different actors, the courts often consider the different "reasonable care". For the factors which besides the actor, the courts often consider the emergency, the convention and the custom, or if the actor undertake the high risk activity or to handle the high risk matter. For the actor, the court consider the different standard of "reasonable care" based on the practical situation.Over the half of the century, in the judicial practices of the United States, it is adopts the risk-utility standard more and more, which called "Hand Formula". In fact, it is to judge the defect of the parties by the way of economic analysis and income weight, 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. But in practice, the variability of the standard is hard to definite, so it is criticized by the citizens.In general, in the judicial practices of the United States, it is generally to adopt the "reasonable standard" to judge the defect of the parties, which adopts the "Hand formula" to measure the interests of the parties in single case. In the specific case, as the different situation of the case, the regulation is different.Currently, China almost has no rules of tort law concerning the criterion for unintentional tort. So there are no definite provisions about the criterion for the judgement of unintentional tort in Chinese laws and judicial interpretations. And《the tort'law of the people's republic of china》has no definite content about the topics. Although the regulation of judgement rules of the unintentional have some problems in the United Stases, there are some solutions for this. We can draw lessons from the judgement rules of the unintentional in Chinese tort laws.