Breach of Duty

If someone injures you through negligent conduct, you might have a personal injury claim against them. To win a claim based on negligence, you must prove each of four standard elements, including breach of duty.

Many personal injury cases revolve around breach of duty as the main element at issue. 

What Are the Four Elements of a Typical Personal Injury Claim?

Most personal injury claims are based on negligence, which is the failure to act with reasonable care under the circumstances, resulting in harm to another person. 

The four elements of negligence are:

  1. Duty: The defendant must have had a legal duty of care towards you (to drive safely, for example, or to perform surgery on you competently).
  2. Breach of duty: The defendant failed to meet their duty of care (by driving recklessly, for example).
  3. Causation: The defendant caused an accident or incident that harmed you.
  4. Damages: You suffered physical harm (and perhaps other losses) as a consequence of the defendant’s misconduct.

You must prove all four ‌elements to win compensation. Some types of claims, such as product liability claims based on strict liability, apply different elements.

How Do You Prove the Defendant’s Duty of Care?

How do you prove precisely what duty of care the defendant owed you? There are many ways, depending on the specific events and facts surrounding your case. Duties vary from situation to situation. 

Following are some examples:  

  • Every motorist has the duty to drive with reasonable care. This means refraining from drinking and driving, texting and driving, etc. It also means observing many other safety rules and traffic regulations.
  • Based on their education and training, the defendant may have had a duty to competently repair the plaintiff’s gas stove to prevent it from exploding.
  • A neurosurgeon must perform surgery with at least the level of care and skill of a competent neurosurgeon. 

For medical malpractice or brain injuries, the duty of care is likely to be so technical that the average person cannot understand the nature of the standard being applied without a special presentation.

If the standard of care is technical and complex, you may need an expert witness to help you establish what standard of care applies to the defendant. It will then be up to your lawyer to explain it clearly enough for the court or insurance adjuster to understand.

How Do You Prove That the Defendant Breached Their Duty of Care?

You must show that the defendant’s actions fell short of what a “reasonable person” would have done in similar circumstances. This is an objective standard.

A reasonable person is someone with similar life experience, skills, knowledge, education, etc., as the defendant, depending on the case. For example, if the defendant is a plastic surgeon, their actions will be compared to those of a reasonably competent plastic surgeon with similar credentials and skills. If the defendant is a minor, they will be compared to a reasonable minor of the same age and capacity.

When the claims are complex, you probably need the assistance and testimony of an expert witness to prove that the defendant breached their duty of care.

Proving Breach of Duty is Not Enough to Win 

Duty of care and breach of duty are only the first two elements that you must prove to win a personal injury claim based on negligence. 

You must also prove:

  • Direct and proximate causation: You must prove that the accident would not have occurred but for the defendant’s misconduct. You must also prove that the defendant should have foreseen the likely possibility of an accident. 
  • Damages: You can win compensation for medical expenses, lost wages, pain and suffering, and potentially many other elements of damages. You must prove the existence of these damages and their value.

Remember that most claims resolve at the settlement table, not in court. Nevertheless, evidence proving the elements of a claim is still an essential bargaining tool even if the claimant never files a lawsuit.

Contact a Personal Injury Lawyer to Help You Prove a Breach of Duty

Almost any personal injury lawyer offers you two immediate advantages:

  • They offer free initial case consultations, and
  • You won’t owe them a dime until your case is over.

The purpose of the initial consultation is to determine whether you have a claim that is strong enough to win. If it is, the lawyer will probably be interested in representing you.

With most personal injury attorneys, you won’t owe them anything if they lose your case. If they win, either in court or during settlement negotiations, your legal fees will be deducted from your awarded compensation.

Remember—your lawyer only makes money if you do, which puts you on the same side. Contact Petrov Personal Injury Lawyers to schedule a free consultation to discuss your case today.