In Tort Law, The General Safety Duty Of Care

Acting as a tool for creating the rules , duty of care is the basic doctrine in fact on negligent torts . As it's contents is extensive , the author reviewing it from the angle of public place , includes part of such duty as business operators' safety duty, communities' duty and social activities' duty .First of all ,the author recall the born and development of duty of care, introduce it's theoretic base such as philosophic base , social cost theory, social obligation theory and hazardous activities theory , find the fact that duty of care results of the need of the weighing liberty and safe, guarding the human right as the social risk grows up. The nature of duty of care is the legal duty mainly , is a instrument of creating of rules.The duty of care mainly come from the direct stipulation of legal , and contract, prior activities , assumption of risk and general and approval practice based on moral.When determining the existence of the duty of care , the author introduce the practices of the common law system and the civil law system . The common law system established a set of system theory from justice decisions such as proximity , foreseeability and public policy. The civil law system on the other hand reviewing it from the angle of damage foreseeability and damage avoidability .The duty of care in public place has its own characters, in first place , the subject owes different duty to different objector and in different place . In other place, the duty includes such as warning , notice, repair and even to stop the hazard activities .As the uncertain of the duty of care results the uncertain of the standard on determining whether one breach the duty . In common law system the judge apply the standard of the reasonable man . The reasonable man is assumed as a man who has normal intelligent and ability and prudence. One will breach the duty if he hasn't behaved in accordance with the standard of the reasonable man . In civil law system ,absorbing the theory of omission criminal law, the judge viewing it from the angle of damage's foreseeability and avoidable . Of cause on viewing it , the judge should apply the object standard —the normal person , not the defendant angle, so as to make it easy to operate and to set up a general standard .Whether the defendant owes the plaintiff civil liability when breach the duty , this is the question of the conditions of civil liability. In common law system , when the defendant owes the duty , and breach the duty , results damage , he should compensate the damage . In civil law system ,the judge should consider the conditions of liability. The author considers it from four conditions theory, proves that one breach the duty of care is assumed breach law and has fault. On the principle of determine liability , the author approve applying assumed fault when one breach the duty of care , and only apply fault liability or strict liability when there is statutory stipulation .The author also study the defenses to breach the duty of care , includes such as acceptance of the damage , assumed of risk , contributory negligence , the third party fault and act of God, unforeseeable accidents .On the end ,the author analysis the problems in our country and put forward some proposals about it.