Due Care

“Due care” is a term used to refer to the degree of care that a “reasonable person” would take in a particular situation. For example, due care is expected when someone mails a package. This means that the person should take all of the necessary precautions to ensure that the package will arrive at its definition safely and intact.

The exact elements of the term vary, depending on the laws and circumstances involved in the case being referred to. However, it is generally accepted that “due care” refers to the level of judgment, care, and activity that a reasonable person would engage in under the same circumstances. To explore this concept, consider the following due care definition.

Definition of Due Care


  1. The degree of care that a reasonable person would exercise in a given situation, or under the same circumstances.

What is Due Care

Due care is a level of responsibility that a person in a particular situation is expected to practice. For example, due care is practiced when a person drives his car safely. He is expected to adhere to the rules of the road so as to prevent injury to himself and to others. When he makes it from point A to point B, while following all of the rules that are expected of him, he has practiced due care in operating his vehicle. In law, determining someone’s due care is determining to what extent, if any, he was negligent in the situation at hand.

Due Care vs. Due Diligence

Due diligence is similar to due care, but the two concepts are different in nature. Due care is the act of performing the maintenance necessary to keep something in proper working order. It is also the practice of someone abiding by what is expected of him in a given situation. In other words, due care refers to being sufficiently careful. Due diligence, however, is the act of performing thorough research before committing to a particular plan of action.

An example of due care vs. due diligence can be best illustrated via contract law. If someone researches the terms of a contract and/or the company issuing the contract before signing it and committing to its terms, then he has been diligent in understanding all of the contract’s terms. This is exercising due diligence. Once he has signed the contract, then he is expected to act with due care in carrying out its terms, meaning it is assumed that he will do what is expected of him or suffer the consequences.

Due Care and Negligence

Due care and negligence are closely related. Specifically, negligence is the failure of a person to use due care in a certain situation; failing to act as another average person would have done.

For example:

Natalie has a green light when she steps out into the crosswalk to cross the street. Brandon, who is speeding down the street, intends to make a right-hand turn at the intersection. Brandon slows down to make the turn, but does not look to see if there are any pedestrians – and runs over Natalie, causing serious, life-threatening injuries.

In this example of due care and negligence, Natalie took due care by crossing in the designated crosswalk only when the light told her to walk. Brandon, however, failed to practice due care, which demands that he look before turning. Brandon’s actions were negligent, and he may be held responsible for Natalie’s injuries.

Five Elements of a Negligence Claim

A successful claim for negligence generally requires proof of five specific elements of the incident.


One person owes a duty of care to another when he can predict that injuries could result from his actions. For instance, using the driver example above, the driver owes a duty of care to anyone or anything that may be around him while he is driving. In addition to people, this can include land or buildings that he could potentially damage.

Breach of Duty

When a person knows that he is putting another person at risk, then he may be guilty of a breach of his duty to exercise due care. This may also apply when someone in a similar situation would have been able to foresee the risks that others could suffer as a result of his behavior.

Cause in Fact

The cause in fact element requires that the negligent act be the actual cause of the injuries or damages sustained. This is usually proven via the “but-for” test. This means that “but for” the negligent act, there would have been no damages or injuries sustained by the other party.

Proximate Cause

Proximate cause, when determining negligence, means determining foreseeability. This protects a person from being held liable for unpredictable injuries or damages that could result from his conduct. For instance, if someone on the sidewalk sees a car collide with a pedestrian, and has a heart attack from fear, the driver’s conduct may not be the proximate cause of that witness’ heart attack.

It might be predicted that taking your eyes off the road could lead to veering off onto the sidewalk and running over someone. It is impossible, however, to predict that veering off the road could cause someone to have a heart attack.


Finally, to win a negligence claim, there must be damages or injuries involved. Financial or economic losses, or physical injuries that resulted from the person’s failure to exercise due care rounds out the final element for a negligence claim.

Negligence Defenses

Negligence defenses are similar to those that can be used in other types of civil liability cases. Some negligence defenses can include:

  • Contributory Negligence – A claim that the plaintiff acted in some way as to harm himself, which then negates, or reduces, the plaintiff’s claim that the defendant is responsible for his damages.
  • Limitation of Liability – The statute or the terms of a contract may restrict the plaintiff’s ability to sue for negligence.
  • Assumption of Risk – The plaintiff had prior knowledge of, and accepted, the risks involved with the situation before engaging in the situation.

Failure to Exercise Due Care

A person can be found guilty of a failure to exercise due care if:

  • He violated a statute or other law relevant to the situation in which he was involved.
  • His violation was the proximate cause of death or injury to another person, or of property damages.
  • The death, injury, and/or property damages resulted from a situation that the violated law was designed to prevent.
  • The person suffering death, injury, and/or damages to his property belonged to the class of people that the violated law was designed to protect.

The concept of a failure to exercise due care is typically referred to when determining the responsibilities of those involved in such incidents as traffic accidents. For instance, motorists are required to exercise due care while driving, so as to avoid hitting pedestrians and bicyclists, as well as to avoid colliding with another’s property.

Depending on the laws of the state in which the motorist resides, penalties for violating the law can range from fines to points on one’s license, and even jail time. In addition, liability for injuries or damages resulting from a failure to exercise due care may be sought through a civil lawsuit.

Due Care Example Involving a Wrongful Death

In 1972, Roland Peterson was shot and killed by a police officer, as he was running away from his apartment. The police officer who killed Peterson was responding to a radio call that mistakenly reported a burglary in progress at the apartment. As the officer approached Peterson with his gun drawn, Peterson ran, and the officer shot him in the head. The officer did not see, nor did he receive information about, any weapons, violence, or even the threat of violence at the apartment.

Peterson’s parents sued the officer and his employer, the City of Long Beach, California, for Peterson’s wrongful death. The trial court ruled that the officer’s use of deadly force was justifiable, and ruled in favor of the officer and the city.

Peterson’s parents appealed, and the Supreme Court of California held that the lower court’s ruling was in error. The court stated in its decision that the officer did not exercise due care as defined by California law. The court pointed out that California law automatically presumes that the officer did not exercise due care, and requires that evidence to the contrary must be proven. In other words, the police officer, and his employer, must prove that he acted in the manner another reasonable person would have acted in the same situation.

Specifically, the court held that:

“California law creates a presumption that Vershaw did not exercise due care here. The trial court should have considered, but did not consider, whether that presumption was rebutted by evidence that [the officer] did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law …”

This resulted in the court’s presumption of the officer’s failure to exercise due care, due to the fact that Peterson’s death resulted from a situation for which the relevant laws were designed to provide protection. The court went on to say that the trial court did not consider whether the officer “desired to comply” with the law, and that evidence suggested that the officer did not consider the law before shooting Peterson.

Since the officer’s violation raised the question of negligence, the court ruled that he could not be cleared of liability without a judicial inquiry as to whether he could successfully refute a negligence claim. The court ultimately reversed the decision of the lower court, finding instead for Peterson’s parents.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Contract – An agreement between two or more parties in which a promise is made to do or provide something in return for a valuable benefit.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Proximate Cause – An event sufficiently related to an injury to be considered the cause of that injury.