Duty of Care

A duty of care asks a threshold question: does a defendant owe the plaintiff any obligation at all, before examining conduct. Courts recognize this duty for physical products, the reason a carmaker can be sued when faulty brakes cause a crash.

Software manufacturers have largely escaped an equivalent duty. US courts treat software harms as economic loss, outside tort law's reach, leaving contract law (see L-03) to fill the gap. The EU's revised Product Liability Directive moves the other way.

Whether a duty exists is separate from what satisfies it (see L-02).

Discussion prompts

• If a carmaker owes drivers a duty of care, why doesn't a software manufacturer?
• What would your organization change if a court recognized a manufacturer's duty of care tomorrow?
• Does the EU treating software as a product change how a US manufacturer should think about its US-only risk?