Breach of Duty

A personal injury claim arises when someone else injures you through some sort of misconduct. Negligence, which roughly means” carelessness”, is the most common basis for a personal injury claim. 

To win a negligence claim, you must prove four legal elements: duty of care, breach of duty, damages, and causation. Many personal injury and wrongful death claims revolve around questions concerning breach of duty. 

The Four Elements of a Personal Injury Claim Explained

The Four Elements of a Personal Injury Claim Explained

It is important to understand breach of duty in the context of a negligence claim. You must prove each element of your negligence claim by a “preponderance of the evidence.” 

All this means is that your evidence, taken as a whole, must be weighty enough to convince a court that the fact asserted is “more likely than not” to be true. You can establish breach of duty, for example, by proving that the defendant was at least 51% likely to have breached their duty of care. 

Following is an introduction to each of the four elements that you need to prove to win a negligence claim. 

Duty of Care

Breach of duty and duty of care are intimately related. After all, it is the duty of care that defines exactly what a breach of duty is. Following are examples of duties of care:

  • The duty of ordinary care to prevent injury every mentally competent adult owes everyone else.
  • The duty to obey safety laws and regulations.
  • Premises liability: Businesses, for example, owe invitees (such as potential customers) a duty to maintain their property in a reasonably safe condition. They must exercise due care to protect invitees from injury by non-obvious dangers.
  • Dram shop liability: The duty of a nightclub to refrain from serving obviously intoxicated people.
  • The elevated “common carrier” duty of care: Common carriers include airlines, railroads, bus lines, and other public transportation entities. They owe their passengers the “highest degree of practical care,” which is an elevated duty of care.
  • The duty to comply with trucking regulations. These regulations are extensive and often downright byzantine in their complexity.
  • Formal and informal professional practice standards. Doctors, for example, must comply with the medical competence standards that are defined by their profession. This is also true for lawyers. Not all of these standards have been codified into written form.

In some cases, you might need an expert witness to determine the exact nature of the defendant’s duty of care.

Breach of Duty

A duty of care places certain demands upon a defendant. If the defendant fails to meet all of these demands, a breach of duty occurs. A breach of duty can occur in the form of an inappropriate action or an inappropriate failure to act.  

A personal injury victim might prove breach of duty in the following manner, depending on the specific nature of the breach:

  • Persuasive argumentation. This might convince a court, for example, that the defendant failed to exercise the “common sense” necessary to observe an ordinary duty of care.
  • Eyewitness testimony that a nightclub served an obviously intoxicated customer, thereby violating the law. You don’t need an expert witness to testify that someone was “obviously intoxicated.” 
  • Negligence per se: Violation of a safety statute, regulation, or code is automatic negligence, otherwise known as negligence per se. All you need to do is prove the existence of a safety standard and the defendant’s violation of that standard. 
  • Professional duty of care: An eyewitness could testify that, for example, a trucker overloaded their truck with too much cargo. You might need expert witness testimony, by contrast, to prove that an electrician wired a building in a negligent manner.
  • CCTV footage, or other photographic evidence, might also establish breach of duty.
  • A truck or an automobile’s event data recorder might establish the driver’s breach of duty.

Keep in mind that “duty of care plus breach of duty equals negligence.” Proving negligence, however, is not enough to prove liability and thereby win your claim. You must also prove damages and causation, as discussed below.


The term “damages” refers to the victim’s tangible and intangible losses arising from the defendant’s breach of duty. This might include:

  • Medical expenses;
  • Lost earnings;
  • Pain and suffering;
  • Emotional distress and mental anguish;
  • Disfigurement and scarring; and
  • Loss of enjoyment of life.

Courts (and negotiating parties) frequently place a high monetary value on intangible losses such as pain and suffering.


Causation is the factor that links negligence with damages. To establish causation, you must establish that (i) the victim’s damages would not have occurred absent the defendant’s breach of duty; and (ii) the victim’s damages were a foreseeable result of the defendant’s negligence. 

Consequently, a defendant would likely not bear liability for a freak accident that nobody could have foreseen.

When in Doubt, Seek the Assistance of a Personal Injury Lawyer

If the defendant’s breach of duty is at issue in your claim, your claim is probably complex enough to require the services of a personal injury lawyer. Almost any Personal Injury attorney will offer you a free initial case consultation. Contact the attorneys at Curiel & Runion Personal Injury Lawyers if you would like to learn more. Just call (602) 595-5559.