Negligence & Breach of Duty of Care

Negligence Claims

A personal injury victim through his or her personal injury lawyer must establish certain elements by a preponderance of the evidence. The typical elements are that the defendant owed a duty of care to the victim, the defendant breached that duty of care, the breach caused the plaintiff to sustain injury and the victim incurred damages as a result. The breach of the duty of care is predicated on what the duty of care is.

Duty of Care

The appropriate duty of care depends on several factors, such as:

Relevant Statutes, Rules and Regulations

There may be specific duties that are written into law. For example, a law may indicate the types of steps that a person must take in certain situations. For example, if the defendant is an explosives manufacture or nuclear plant, there may be very detailed regulations regarding what steps the manufacturer must take to safeguard the community. Drivers are required to follow the rules of the road to prevent accidents.

Relationship Between the Parties

The duty may be based on the relationship between the parties. For example, parents have certain legal obligations to their children. Teachers and daycare workers may be tasked with safeguarding children in their care. Employees are required to provide a safe working environment for their employees. A doctor must comply with the relevant standard of care in accordance with the specialization and area where the doctor practices.

Another area of personal injury law where the relationship between the parties is indicative of the type of care that must be given to the victim is premises liability principles. Many states provide for three or more categories of visitors to private or commercial property. The level of care that a property owner must exhibit depends on the status of the visitor. For example, many jurisdictions designate visitors as invitees, licensees and trespassers. Invitees are individuals who are usually on the property for the economic benefit of the property owner.

The property owner owes this type of visitor the highest degree of care, which usually includes routinely checking the premises for unknown dangers and remedying them. He or she must also warn invitees about these dangers. The next type of visitor is a licensee. This is an individual with legal permission to be on a property, such as a social guest. The property owner must warn these individuals about any known dangers on the property. The last category is a trespasser. The property owner only owes trespassers the duty not to intentionally harm them.

General Standard of Care

Absent a specific standard of care, courts have generally found that people must act with the same reasonable care that an ordinary person would have acted in the same situation.

Breach of Duty of Care

Once the appropriate duty of care is determined, the plaintiff must the show how the defendant breached this duty or did not act according to the required standard. This element is usually established by showing what the appropriate duty of care required and how the defendant’s actions fell short of this standard.

One fundamental question that courts ask when determining whether there was a breach of duty of care is if the defendant could foresee the risk of harm to the plaintiff and failed to prevent the harm from occurring. Courts may also consider if there were alternatives available that could have prevented the harm, such as other courses of action the defendant could have taken, whether the defendant tried to put a boundary around a dangerous aspect, whether different materials could be used or other adjustments could have been made. Then, the court considers whether these safer alternatives would have made the situation financially implausible or imposed too heavy a burden on the defendant.

Strict Liability

In some situations, the court will presume a breach of duty of care based on the existence of certain factors. For example, many states provide for strict liability when involving abnormally dangerous activities. If someone is injured, the defendant is presumed to have breached the duty of care. In many states, dog bites cases are based on strict liability. If the dog bit someone and the relevant elements based on the statute were preset, the victim can recover damages without showing a specific breach of duty of care.

Provided by HG.org

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case.

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