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Breach of Duty

Breach of DutyThe majority of personal injury cases are based on negligence. Negligence requires an accident victim to prove: (i) the defendant owed the victim a duty of care, and (ii) the defendant breached that duty of care. It is almost impossible to discuss the breach of a duty of care without also discussing how courts identify duties of care.  

Remember that establishing the elements of duty and breach proves negligence but not necessarily liability. You must prove two more elements to win compensation-–damages and causation.

What is a Duty of Care?

What is a Duty of Care?

Duties of care come in different varieties, including:

  • The ordinary duty of care to act as a “reasonable and prudent person” to protect the safety of others.
  • The elevated duty of care that applies to certain highly trained professionals, such as lawyers and clients, doctors and patients, etc.
  • The duty of care that a parent or guardian owes to their child.

Other kinds of duties of care exist as well.


Following is a list of some of the most common duties of care that might arise in a personal injury case.

  • The duty to drive safely. This means not only obeying all traffic laws, but also exercising prudent judgment when reacting to traffic situations.
  • The duty to keep your premises reasonably safe for guests, and to either repair or warn of safety hazards.
  • A doctor’s duty to treat their patients with the care that a “reasonable and prudent doctor” would exercise. This duty may vary from patient to patient and from case to case.

A duty of care can arise under almost any circumstance.

The “Reasonable and Prudent Person” Standard

The “reasonable and prudent person” is a hypothetical person who acts with common sense and good judgment to avoid injuring others through their conduct. A court or jury will evaluate a defendant’s duty of care by asking “What would a reasonable and prudent person do under the circumstances in which this claim arose?” 

With a medical professional, the question must be specific to the medical providers’ area of medicine:

  • What would a reasonable and prudent family doctor do under these circumstances?
  • What would a reasonable and prudent cardiologist do under these circumstances?

Ultimately, the nature of the defendant’s duty of care is an issue of law, while ‌the breach of this duty is a question of fact. Since it is a question of fact, it is typically decided by a jury. A jury will find a defendant negligent if they fail to act as a reasonable person and injure someone through careless conduct.

Breach of the Duty of Care

Once you establish the nature of the defendant’s duty of care, it is time to determine whether the defendant breached that duty.

Negligence Per Se

In New York, negligence per se is a legal principle that offers an injury victim a shortcut to proving the defendant’s negligence. Under negligence per se, violation of a New York state safety law may constitute a “breach of duty” and, therefore, negligence. 

Following are just a few examples of rules that generate negligence per se if the defendant breaks one of them:

  • State building codes;
  • State fire codes;
  • Commercial trucking regulations; and
  • State traffic laws.

To qualify for negligence per se, the law must be designed to protect against the type of harm a plaintiff suffered and must be designed to protect the class of persons to which the plaintiff belongs (e.g., building tenants, motor vehicle drivers, pedestrians, etc.).

Expert Witnesses

Expert witnesses are routine in certain kinds of personal injury claims, especially medical malpractice claims. A medical expert witness, for example, might be a doctor practicing in the same field, or a former doctor who makes their living as a “professional expert witness.”

In some cases, both sides will call their own expert witnesses to testify in opposition to each other, leaving the jury to decide who is right.

You can use an expert witness to establish duty, breach, or both. A medical expert witness, for example, might testify that a defendant doctor should have ordered a lab test after a patient described certain symptoms. An expert witness might establish breach of duty by, for example, examining the patient’s injury or illness to determine what treatment they received. 

Causation and Damages

One way to remember the relationship between negligence and liability in a personal injury claim is “negligence + damages + causation = liability.” Once you prove negligence, you must prove that you suffered damages (economic and non-economic losses). Damages might include medical expenses, lost earnings, pain and suffering, etc. You must also justify the amount of damages you are claiming.

Once you prove negligence and damages, you must link them by proving causation. Proving causation means you proved ‌it was the defendant’s negligence, not some other factor (an old back injury, for example), that caused your damages.

Competent Legal Advice is Essential

Hiring a personal injury lawyer for your negligence claim is almost a necessity. Remember that almost any personal injury lawyer will not charge your for representation unless they win your case.  Personal injury lawyers also almost always offer free initial consultations. So, contact our personal injury lawyer in Queens or the Bronx today for help with your claim.

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