Jeffrey Johnson has written novels and movies in addition to legal analyses of eminent domain and immigration law. His experience in writing engaging fiction makes him uniquely capable of making the most dry and academic legal topics interesting (or.
Jeffrey Johnson, J.D. Deputy Legal EditorJeffrey Johnson has written novels and movies in addition to legal analyses of eminent domain and immigration law. His experience in writing engaging fiction makes him uniquely capable of making the most dry and academic legal topics interesting (or.
Written By Jeffrey Johnson, J.D. Deputy Legal EditorJeffrey Johnson has written novels and movies in addition to legal analyses of eminent domain and immigration law. His experience in writing engaging fiction makes him uniquely capable of making the most dry and academic legal topics interesting (or.
Jeffrey Johnson, J.D. Deputy Legal EditorJeffrey Johnson has written novels and movies in addition to legal analyses of eminent domain and immigration law. His experience in writing engaging fiction makes him uniquely capable of making the most dry and academic legal topics interesting (or.
Deputy Legal Editor Mike Cetera Editor in Chief, Forbes Marketplace U.S.Mike Cetera is the editor in chief for Forbes Marketplace U.S. Mike has written and edited articles about mortgages, savings accounts, CD rates and credit cards for more than a decade. Prior to joining Marketplace, his work appeared on Bankrate, The.
Mike Cetera Editor in Chief, Forbes Marketplace U.S.Mike Cetera is the editor in chief for Forbes Marketplace U.S. Mike has written and edited articles about mortgages, savings accounts, CD rates and credit cards for more than a decade. Prior to joining Marketplace, his work appeared on Bankrate, The.
Mike Cetera Editor in Chief, Forbes Marketplace U.S.Mike Cetera is the editor in chief for Forbes Marketplace U.S. Mike has written and edited articles about mortgages, savings accounts, CD rates and credit cards for more than a decade. Prior to joining Marketplace, his work appeared on Bankrate, The.
Mike Cetera Editor in Chief, Forbes Marketplace U.S.Mike Cetera is the editor in chief for Forbes Marketplace U.S. Mike has written and edited articles about mortgages, savings accounts, CD rates and credit cards for more than a decade. Prior to joining Marketplace, his work appeared on Bankrate, The.
Editor in Chief, Forbes Marketplace U.S. Héctor Leal, J.D. contributorHector Leal is a successful attorney in private practice with more than 45 years of experience as a trial attorney handling criminal and civil cases in both state and federal courts, including capital murder cases. He has also taught law at the under.
Héctor Leal, J.D. contributorHector Leal is a successful attorney in private practice with more than 45 years of experience as a trial attorney handling criminal and civil cases in both state and federal courts, including capital murder cases. He has also taught law at the under.
Héctor Leal, J.D. contributorHector Leal is a successful attorney in private practice with more than 45 years of experience as a trial attorney handling criminal and civil cases in both state and federal courts, including capital murder cases. He has also taught law at the under.
Héctor Leal, J.D. contributorHector Leal is a successful attorney in private practice with more than 45 years of experience as a trial attorney handling criminal and civil cases in both state and federal courts, including capital murder cases. He has also taught law at the under.
Updated: Sep 5, 2024, 3:49am
Editorial Note: We earn a commission from partner links on Forbes Advisor. Commissions do not affect our editors' opinions or evaluations.
Getty
When you make plans or promise to do something, you may think of it as a duty that you have. Legally, however, not showing up for dinner or forgetting to mow the lawn isn’t a breach of duty.
So what is a breach of duty? Simply put, a duty is a legal obligation to do or not do something. You have a duty to pay your taxes and a duty not to steal, for example. Breaching those duties results in a crime. In other situations, breaching a duty may cause harm to someone else, such as in a car accident. This is called negligence.
This guide explains what breach of duty is and how it applies in negligence cases.
In general, a duty of care is a legal obligation one person owes to another to exercise reasonable caution when doing something that could foreseeably cause harm. The definition may seem simple enough, but in a negligence case, both “reasonable” and “foreseeable” can be important points of disagreement.
There are many situations in which people have a duty of care. A doctor has a duty of care to meet the standard of care required by the patient’s condition. An accountant has a duty of care to prepare tax returns accurately. A store owner has a duty of care to clear ice off their sidewalk so patrons do not fall.
A duty of care exists only when there is a relationship, situation or contract that warrants it. Your doctor has no duty of care to help you manage your finances. Your accountant has no duty of care to ensure you get treatment for your chronic illness.
A duty of care can arise because of a situation or because of a contract or statute. In general there are four situations where a duty of care exists:
Because each state has its own laws concerning breach of duty and negligence, there are different standards and interpretations.
Some states have statutes or rules that specifically lay out the steps that are required as part of a duty of care. A state may have a law or regulation that specifies steps that must be taken by certain people or companies. For example, states have regulations that explosives manufacturers must follow to protect the community.
Breach of duty occurs when a duty of care exists and is not followed. Breach of duty is a required element in negligence cases.
For example, you have a duty of care to other drivers to drive under or at the speed limit and a duty of care not to drink and drive. You breach that duty by driving over the speed limit or by drinking and driving.
The standard of care at common law is an objective one known as the reasonable person standard. A reasonable person is someone who exercises reasonable caution, doesn’t take actions likely to result in harm to themselves or others and/or takes evasive action to avoid harm.
In most civil cases, if a reasonable person would have acted with more care than the defendant, the defendant likely breached their duty.
Remember, a duty of care is a legal obligation one person owes to another to exercise reasonable caution when doing something that could foreseeably cause harm. When that duty is breached, negligence is the result.
In some states, foreseeability is the only test required to create a duty of care. What this means is that if a jury finds that if the harm was foreseeable, then the actor was negligent. So, for example, it’s foreseeable that deciding to drive drunk will result in a car accident — the person who decided to drink and drive was negligent.
A majority of states, however, rely on a multifactor analysis to determine whether a duty existed. Though states have different factors, most include:
Once a duty of care is established, if that duty was breached then a test is applied to determine if there was negligence.
So far, we’ve discussed negligence cases. Negligence cases include personal injury, medical malpractice, product liability and other types of civil cases, but there are other cases that can also involve a breach of duty: strict liability. Strict liability is the breach of an absolute duty to make something safe.
Strict liability cases fall into three categories:
One of the most common types of strict liability cases is one involving keeping extremely dangerous animals. If someone owns a tiger and it escapes and hurts someone, it won’t matter if the owner was negligent. Simply owning the animal establishes their liability.
One defense to a breach of duty claim is that no duty existed. The defendant was not in a position to have a duty of care toward the plaintiff and is not responsible for the harm.
However, the reasonable person standard means that there’s a duty to act reasonably and with due caution and care in most circumstances. One way around this is to claim that the plaintiff assumed the risk.
When someone assumes the risk, they accept responsibility for any harm that they may suffer as a result of an activity. This effectively relieves the potential defendant of any duty owed.
The plaintiff must have been aware of the risk and accepted it either verbally or through their actions. Signing a release before you go skydiving is an assumption of risk. Walking into a cage with a sign that says “Danger: Poisonous Snake Inside: Do Not Enter” creates assumption of risk.
Children constitute an important exception to this, especially in cases of “attractive nuisances” such as swimming pools, which can be reasonably expected to attract children, including those who can’t read.
Another defense to negligence involves proving that the plaintiff was also negligent. This depends on the negligence law in the state where the case happens.
There are three negligence standards in the United States. To explain them all, let’s consider an auto accident where the plaintiff, who was speeding, is 30% responsible for the damages and the defendant, who changed lanes illegally while drunk, is 70% responsible. The total damages are $10,000.
If you fail to fulfill your duty of care, you can be held liable for damages caused as well as for court costs and pain and suffering of anyone you injured.
Proving that someone breached their duty of care is a three-step process. The first step is to establish the duty of care for the specific action at issue in the case. This can be done through expert testimony or other evidence. The second step is simply to establish the facts of the case. Once the facts are known, the third step is to simply argue to the fact-finder (the jury or the judge) that the actions taken in this case do not meet the standard of care as established by the evidence.
All court cases depend on the specifics of the facts surrounding the case itself. That being said, it can sometimes be easy to prove a breach of duty due to a doctrine called res ipsa loquitur. Literally translated as “the thing speaks for itself,” this doctrine applies to situations where the only explanation for something happening is that some duty was breached. For example, say you paid to have some expensive wine stored in a specialty storage facility that guaranteed it had generators and that the ideal conditions would be maintained. You went to get a bottle and found that it had been ruined due to extreme heat and many of your other bottles had exploded. You may not be able to prove precisely what happened. Maybe the company didn’t maintain their generators or maybe they set the controls wrong or maybe they used a flamethrower on your wine. Regardless of what really happened, they had a duty to keep your wine safe and the condition of your wine speaks for itself.
The information on this page does not constitute legal advice, nor does use of or access to this page create an attorney-client relationship between any parties. Information provided on Forbes Advisor is for informational purposes only. Your legal situation is unique and the attorneys and services we rank may not be right for your circumstances. Consult with an attorney to obtain advice on your particular legal matter.
