Cause of Action: Breach of duty

Breach of a duty is the second element to a negligence lawsuit. The question to be asked is: Would a reasonable person in a similar situation have done the same thing as the person being sued? To come to that conclusion both objective and subjective standards need to be considered.

The objective standard of breach of duty considers a hypothetical person and what his or her reasonable behavior might be. The subjective standard of breach of duty considers the actual person being sued and whether the jury thinks they acted reasonably in the matter at hand. See also: calculus of negligence.

Whether there is a breach of duty is determined by reference to the following factors:
The defendant's knowledge- e.g., whether a reasonable person in defendant's position would have foreseen the damage in the circumstances prevailing at the time of the alleged breach of duty.
The extent of risk- the greater the risk that serious harm can be inflicted, the greater the precautions that the defendant is required to take.
The feasibility of these precautions- if the precautions that should have been taken were not feasible, the defendant may not be held liable for failure to take those precautions.
The social significance of the defendant's actions. If the defendant's actions meet a socially useful purpose, then he or she may have been justified in taking greater risks, i.e. no breach of duty on part of the defendant

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Return to the Components of a Negligence Lawsuit

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see also:

Negligence & Remoteness How does "remoteness" apply to a negligence lawsuit?
The legal definition of remoteness in a negligence lawsuit

Cause of Action: Defense Negligence Litigation: Cause of Action defenses explained by a lawyer.
"Cause of Action" defense discussed by lawyers at Weitz & Luxenberg.

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