Breach of Duty

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Breach of Duty

Breach of Duty

Most personal injury claims are based on negligence, which is a legal term that means “carelessness.” Negligence breaks down into four separate elements: duty of care, breach of duty, causation, and damages. 

Once you prove these four elements, you have established that the defendant is liable for the accident that generated the claim. Many personal injury claims revolve around whether the defendant breached their duty of care.

What Are the Four Elements of Negligence? 

To win a personal injury claim, you must prove each of the following four elements of negligence:

Duty of Care 

The duty of care is a legal or moral obligation that arises due to the relationship between parties. For example, every driver has a duty to drive carefully to avoid injuring others on the road. A forklift operator has a duty to operate the forklift with the skill of a reasonable (trained) forklift operator.

Breach of Duty

Failure to meet the standard of the applicable duty of care constitutes a breach of that duty. For example, if a driver was distracted and crashed into another vehicle, they breached their duty of care because they failed to drive carefully and caused an accident. 


You must prove causation by showing that (i) your injuries would not have occurred except for the defendant’s negligence, and (ii) your injuries were a foreseeable result of the defendant’s negligence. Without foreseeability, there is no causation and thus no liability.

For example, a distracted driver should reasonably foresee that taking their attention away from the road will cause an accident. 


You must establish that you suffered an injury due to the defendant’s actions. If you were in an accident but didn’t suffer any type of injury, you haven’t met this element of negligence. 

The “Reasonable Person” Standard and Breach of Duty 

The “reasonable person” is a legal standard that applies throughout personal injury law. The “reasonable person” is a hypothetical person who always makes reasonable and prudent decisions. You can determine the presence or absence of a breach of duty by comparing the defendant’s conduct to that of a “reasonable person” under similar circumstances.

In some cases, the reasonable person possesses specialized skills. What would a reasonable truck driver do under these circumstances? A reasonable electrician? A reasonable construction worker? What is considered “reasonable” is a question of fact for a jury. That is one of the reasons that parties seek to avoid trial and settle claims out of court as much as possible.

What is the Standard of Proof in a Personal Injury Case? 

The standard of proof in a civil lawsuit is a “preponderance of the evidence,” which means “more likely than not.” To win, the claimant must prove the existence of all four elements of negligence – duty, breach, causation, and damages – under the preponderance of the evidence standard. There are several ways to prove a breach of duty, including relevant evidence and the use of an expert witness.

Expert Witnesses and Breach of the Duty of Care

Expert witnesses are people who are particularly knowledgeable about a topic of critical importance in a case. A judge must qualify an expert witness before their testimony constitutes admissible evidence. 

For example, an accident reconstruction expert might testify in a wrongful death case arising out of a motorcycle accident. The defense, however, might call their own expert witness to testify. This leaves it up to the jury to decide who to believe.

Comparative Fault and the Breach of Duty 

In some cases, more than one party can breach their duty of care. When this happens, Georgia’s comparative fault rules kick in. If the case makes it to court, the court will assign a percentage of fault to each party (25% to you and 75% to the other driver, for example). The court will then reduce your awarded damages by your percentage of fault. In this case, you would lose 25% of your damages. 

If the plaintiff’s percentage of fault equals 50% or more, however, they will receive no damages at all. In settlement negotiations, the outcome will mirror what the parties think would happen if the case went to court. If they cannot agree, a trial is likely.

You might be able to settle a small claim on your own without the assistance of a lawyer. Defendants and their insurance companies, however, fight hard to resist large claims. Without a lawyer, you could be facing an army of company lawyers or an insurance adjuster, all by yourself. 

A skilled personal injury lawyer knows how to handle these parties and recover a fair settlement on your behalf.

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