Also known as: duties of due care · duty of care · due care
Written by attorneys · grounded in primary & secondary sources — see below
A fiduciary obligation requiring an agent, partner, member, or similar actor to exercise the knowledge and care that a person of ordinary experience and intelligence would employ in the same role. The standard includes what such a person would learn by using due care in performing assigned duties, taking into account the actor's actual knowledge and abilities.
ByteWave hired Leo to select third-party code for a new app. Leo chose an open-source library notorious in the industry for security flaws without investigating or warning the company. The resulting data breach caused substantial losses. ByteWave recovered from Leo because his failure to discover and disclose information that a careful professional in his position would have found breached the duty of due care.
Dawson Steel produced a defective component sold through distributors to end users. A bystander was injured when the component failed. The absence of a direct contract did not shield Dawson Steel. The company owed the bystander a duty of due care because the risk of injury was foreseeable to users and bystanders.
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Dynamic Solutions, a member-managed LLC, tasked member Danielle Dixon with selecting a maintenance vendor. She signed without reviewing widely available reports of the vendor's repeated failures. Service outages followed. The LLC recovered damages because Dixon's conduct amounted to a failure to exercise the ordinary care required of an LLC member.
Duarte Shipping formed a limited partnership whose agreement purported to eliminate all liability for negligent decisions by general partners. A general partner later made a grossly negligent choice that damaged partnership property. The clause was ineffective. The duty of due care remained enforceable despite the attempted contractual waiver.
Dakota Industries operated as a general partnership whose agreement tried to eliminate liability for ordinary negligence by partners. One partner proceeded with a transaction despite obvious red flags that reasonable investigation would have revealed. The waiver clause was invalid. The partner remained subject to the duty of due care.
Destiny Davis operated a stage production that omitted a required safety briefing for audience members near pyrotechnics. A spectator suffered bodily injury solely from fright caused by an equipment malfunction. The production company was liable. Its breach of the duty of due care to protect against foreseeable emotional disturbance that could cause physical harm supported recovery even though the harm occurred through internal fright.
The duty requires both what a person of ordinary experience and intelligence would know and what that person would learn by using due care. An agent or member can breach the duty by failing to investigate readily available information that a careful professional in the same position would have discovered.
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No. Uniform acts prohibit altering or eliminating the duty of care except in narrowly defined ways that still bar authorization of bad faith, willful misconduct, or knowing violations of law. Attempts to waive ordinary negligence liability are unenforceable.
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Yes. A paid agent must meet the ordinary local professional standard for the work performed. A gratuitous agent is held only to the care that a non-agent would exercise when performing similar unpaid tasks, which is typically a lower standard.
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No. A manufacturer owes a duty of due care to any foreseeable plaintiff, including users, consumers, and bystanders, regardless of contractual privity.
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…of falsity or reckless disregard for the truth." Ante , at 349. But plainly a jury's latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court's broad-ranging examples of "actual injury,"…