What is “breach of duty”?

A breach of duty occurs when one person or company has a duty of care toward another person or company, but fails to live up to that standard.  A person may be liable for negligence in a personal injury case if his breach of duty caused another person’s injuries.

When considering whether a defendant in a torts case has breached his duty toward the plaintiff, the court asks several questions, including:

  • Did the defendant have a duty of toward the plaintiff?  If so, was it a duty of reasonable care, or was it based on professional liability, premises liability, or another type of relationship between the plaintiff and defendant?
  • Did the defendant use the same amount of reasonable care that another person in his position would have used to prevent harm?
  • Did the defendant foresee the risk of harm to the plaintiff, or should he reasonably have foreseen it?
  • What kind of alternatives were available that might have prevented the harm?  These may be alternative actions, locations, materials, designs, or other items, depending on the facts of the individual case.  The question of available alternatives is especially important in products liability cases.
  • Was the burden of using safer alternatives considerably heavier than the risk involved in not using them?

No single one of these questions is enough to establish that a breach of duty did or did not happen.  Rather, courts consider them together, applying them to the specific facts of a personal injury or other torts case in order to determine whether a breach of duty occurred.

In a standard negligence case, a breach of duty usually occurs when a person fails to act with the same reasonable care an ordinary person would use in the same circumstances.  This standard changes slightly in certain types of personal injury cases, however.  For instance, in a medical malpractice case, the question is not whether a medical professional acted as a reasonable ordinary man-on-the-street would, but whether the medical professional acted like a reasonable medical professional with the same training and knowledge would have acted.

Other types of tort cases have different ways to measure breach of duty.  In premises liability, the premises owner’s breach of duty is measured by the relationship he has with the injured person.  For instance, a business owner owes a higher duty of care to a customer than she does to an unexpected trespasser.

In two types of negligence cases, the court glides past the breach of duty question altogether, because the circumstances of these types of cases make the question unnecessary.

The first type of case is the res ipsa loquitur situation.  “Res ipsa loquitur” means “the thing speaks for itself.”  In a res ipsa loquitur case, breach of duty is presumed because the injury would not have occurred unless someone other than the injured person had failed to act with reasonable care.  The court does not bother asking whether the injury was foreseeable or whether reasonable alternatives existed, because the carelessness and the harm are so obviously linked.

The second type of case is the strict liability or negligence per se case.  In these cases, courts do not bother analyzing whether a breach of duty occurred because, according to state or federal law, the person or company in charge of the harmful action is liable for any injuries the action causes, no matter how carefully the action is carried out.  Strict liability and statutory negligence per se are restricted to a few areas of tort law, including abnormally dangerous activities and certain types of products liability cases.

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