Breach of duty is one of the four elements of a traditional personal injury claim based on negligence (carelessness). If you can prove all four elements, you can win your claim, and you might end up with a substantial amount of money. Breach of duty is often the primary element of contention in a negligence-based personal injury lawsuit.
The Four Elements of a Typical Negligence Claim
A typical negligence-based personal injury claim includes the following four elements:
- The defendant owed a duty of care to the plaintiff (the accident victim);
- The defendant breached their duty of care to the plaintiff;
- The plaintiff suffered a personal injury; and
- The plaintiff’s personal injury was caused by the defendant’s breach of duty.
If you are negotiating with an insurance company, by contrast, it is the insured’s breach of duty that you must concern yourself with proving.
Standard of Review (Burden of Proof)
You must prove breach of duty by the “preponderance of the evidence” standard, not the “beyond a reasonable doubt” standard used in criminal law. All this means is that the evidence in favor of breach of duty of care must at least slightly outweigh the evidence that the defendant did not breach their duty of care. You must also prove the other three elements of a negligence-based personal injury claim by the same “preponderance of the evidence” standard.
Duty of Care
It is difficult to speak intelligibly about a breach of a duty of care without first clarifying what the term “duty of care” might mean in various situations. A few examples follow:
Duty of Care for Ordinary Motorists
Sarah is driving down the highway. Since the highway is a public thoroughfare, she has a duty to obey all traffic laws to avoid a car accident. She has an additional duty to comply with the rules of common sense.
No law, for example, will tell you exactly how close you can follow another vehicle without driving negligently – but common sense alone should give you a fairly good idea. Sarah’s duty of care could be characterized as an ordinary duty of care.
Owners of Real Property
Owners of real estate who invite the public onto their property for their own benefit (a business owner, for example) breach their duty of care if they fail to either remedy or warn of dangers on their property that a reasonable inspection would have revealed. This might mean a freshly mopped floor, for example, or a weak stairwell railing. Lawyers call this type of liability “premises liability.”
Professionals and Skilled Workers
Other types of defendants might be subject to different forms of breach of duty. When performing medical care, for example, doctors are held to a higher standard of care than the average citizen would be in the same circumstance.
Proving Breach of Duty
Sometimes proving a breach of duty is easy, and sometimes it is difficult. Following are three ways that plaintiffs commonly use to prove breach of duty:
Eyewitness Testimony Plus Common Sense
A lawyer with an eyewitness willing to testify that she saw the defendant push the plaintiff off a bridge as a prank would start off with good evidence for breach of duty. After all, who would argue that people don’t have a duty to refrain from pushing people off of bridges?
In complex cases, you may need expert testimony to prove both duty and breach of duty. For example, a plaintiff’s lawyer in a scientifically complex case might call an expert witness to establish the duty of care that the defendant was subject to.
The same expert witness might be used to establish that the defendant’s actions represented a breach of the duty of care.
Negligence Per Se
Negligence per se is a legal concept whereby you can sidestep the duty and breach of duty elements. The concept comes into play when the defendant violates an applicable safety law and causes harm to a protected class of persons whom the law intends to prevent.
For instance, driving 25 miles per hour over the speed limit and crashing into another vehicle would likely constitute negligence per se. The driver has violated the speed limit law, has crashed into another vehicle, causing harm, and has injured another driver on the road.
Seek the Assistance of a Seasoned Personal Injury Lawyer
Sometimes the question of liability is simple: “Here is the CCTV video of the defendant running the red light and plowing into my vehicle.”
Other times liability is far more complicated. Even when liability is uncontested, your claim could still be worth a lot more than the amount the opposing party is offering you to settle it. At the very least, seek out a free initial consultation with a personal injury lawyer.