“Duty of care” and “breach of duty” are essential elements of a personal injury claim based on negligence (carelessness). Duty of care and breach of duty are intimately related. You could even say that they are two sides to the same coin.
Once you establish the duty of care, you must establish breach of duty (and other legal elements) to win your case.
Breach of Duty in the Context of a Negligence Claim: The Four Elements
Most of the time, you have to prove the following four facts to win a personal injury claim based on negligence:
- The defendant owed you a duty of care. This is often easy to prove.
- The defendant breached their duty of care.
- The plaintiff (the victim) suffered physical harm. Once the victim proves physical harm, they can demand recovery for psychological harm as well.
- The defendant’s breach of duty caused the harm that the plaintiff suffered.
“Breach of duty” is where the controversy lies in most personal injury claims
Duty of Care and the “Reasonable Person” Standard
There is more than one level of the duty of care. The most basic form of the duty of care is the duty of every competent adult to take reasonable precautions not to cause injury to someone else. You define the duty of care by asking, “What would a reasonable person do under similar circumstances?
Certain defendants might bear liability for failure to comply with an even higher standard of care. A doctor, for example, must meet a professional standard of care to treat patients. The question becomes, “What would a reasonable doctor do under these circumstances?”
Elevated Duties of Care
Following are some examples of elevated duties of care that frequently apply to personal injury claims:
- Professionals must provide services with reasonable skill and care. In personal injury claims, this standard mainly applies to healthcare providers.
- Landlord duty of care: Landlords must ensure their properties are safe for tenants and guests.
- Manufacturers and distributors must ensure their products are safe for consumers. Failure to do so can result in a product liability claim.
- Operators of public transportation services (“common carriers”) must ensure the safety and security of passengers. This duty might apply to a bus accident, for example.
- Educational institutions must provide a safe learning environment for students. A school might bear liability for a student’s sexual assault claim, for example.
- Care providers must meet a higher standard of care for children, the elderly, or those with disabilities.
The foregoing list is not complete; other elevated duties of care arise under certain circumstances.
Breach of Duty: Omission
You breach your duty by omission when you fail to perform an action that your duty requires you to perform. Following are some examples:
- A property owner fails to repair known hazards (premises liability);
- A medical professional fails to respond to patient complaints of ominous symptoms;
- An employer fails to provide employees with necessary safety equipment;
- A dog owner fails to restrain their dog;
- A landlord fails to install smoke detectors;
- A school fails to adequately supervise children; or
- A municipality fails to repair hazardous road conditions
Any of these omissions might justify a personal injury claim.
Breach of Duty: Commission
You breach your duty by commission if you perform an act that your duty forbids you from performing. Following are some examples:
- A property owner negligently places hazardous obstacles in walkways;
- Medical professional performs a harmful procedure due to a misinterpretation of lab tests;
- A municipality installs traffic control devices in a confusing manner; or
- A dog owner lets their aggressive dog out of the house while visitors are in the yard.
Typically, breaches of duty by commission are somewhat easier to prove than breaches of duty by omission.
Expert Testimony and Breach of Duty
In certain complex cases, you need an expert to either identify the defendant’s duty of care, establish their breach of duty, or both. Following are some examples:
- An expert might explain how a defendant failed to meet a medical standard of care in a complex situation like surgery or medication errors.
- A specialist in design or engineering might show how defective products cause harm.
- A safety or engineering expert might help prove employer negligence by assessing adherence to safety standards.
- An: expert in architecture or safety might identify owner negligence in maintaining their property.
- An engineer or an accident reconstruction expert assesses a vehicle safety failure that contributed to an accident.
- Experts in flooring or building safety demonstrate how an overlooked risk led to a slip and fall accident.
Expert testimony is some of the most persuasive evidence available.
Negligence Per Se and Breach of Duty
Negligence per se is a shortcut to proving negligence. If the defendant broke a safety law or regulation, under normal circumstances, you can treat the violation as an automatic breach of duty. You still have to prove causation and injury to win compensation, however.
A Lawrenceville Personal Injury Lawyer Is a Practical Necessity in Complex Breach of Duty Cases
You might not need a lawyer for a simple fender-bender accident with no injuries. The greater your losses and the more complex your case, however, the more likely it is that you’re going to need a lawyer.
Establishing breach of duty is particularly complex and difficult in some instances. Schedule a free initial consultation with an experienced Lawrenceville personal injury lawyer at (678) 446-3655 as soon as you suspect that you might have a claim.