What Is Breach of Duty? Legal Definition & Examples (2022)

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Jeffrey Johnson, J.D.


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(Video) Breach of Duty | Law of Tort

Updated: Sep 20, 2022, 7:00am

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What Is Breach of Duty? Legal Definition & Examples (3) Getty

Table of Contents

  • What Is a Duty of Care?
  • What Is Breach of Duty?
  • When Does a Breach of Duty Constitute Negligence?
  • Breach of Duty in a Strict Liability Case
  • Defenses to Breach of Duty
  • Frequently Asked Questions (FAQs)

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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.

What Is a Duty of Care?

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 only exists when there is a relationship 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.

(Video) Breach of Duty AS

Relationship Between the Parties

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:

  1. The defendant was involved in creating the risk which caused harm to the plaintiff. Example: A worker left a manhole cover off with no sign, causing the plaintiff to fall in the hole.
  2. The defendant volunteered to protect the plaintiff from harm. Example: A drunk volunteer firefighter drops the person they are carrying out of a burning building.
  3. The defendant knew or should have known that their actions would result in harm to the plaintiff. Example: The defendant drove without their lights on so a pedestrian did not see them and was hit.
  4. The plaintiff and defendant have a business relationship, such as innkeeper and guest, or they have a voluntary relationship, such as a person who invites the public onto their property.

Relevant Statutes, Rules and Regulations

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.

What Is Breach of Duty?

Breach of duty occurs when a duty of care exists and was not followed. Breach of duty is an important component in negligence cases.

For example, you have a duty of care to other drivers to drive under 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.

Reasonable Person Standard

The standard of care at common law is an objective one known as the reasonable person standard. A reasonable person is someone with reasonable caution who doesn’t take actions likely to result in harm to themselves or others or who takes evasive action to avoid harm.

In most civil cases, if a reasonable person would have acted with more care than the defendant acted, the defendant likely breached their duty.

When Does a Breach of Duty Constitute Negligence?

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 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:

  • How great the potential harm could be
  • The cost and potential to choose an alternative to the action taken
  • The need to discourage future harm
  • How closely connected the action and the harm are to one another

Once a duty of care is established, if that duty was breached then a test is applied to determine if there was negligence.

There are four elements of a negligence claim:

  1. The defendant owed a duty of care to someone
  2. The defendant breached that duty
  3. The breach of duty caused harm to the plaintiff
  4. The harm caused damages

Breach of Duty in a Strict Liability Case

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:

(Video) Breach of Duty of Care - Negligence Lawsuit

  • Product liability: Where a plaintiff is harmed by a defective product made by the defendant
  • Dangerous animals: A defendant owned or was responsible for a dangerous animal that cause harm to the plaintiff
  • Abnormally dangerous activities: The defendant took part in activities known to be dangerous, such as storing dynamite in their garage. In a strict liability case there is no reasonable person standard or any inquiry into what the defendant knew. If the injury occurred and was caused by the product, animal or activity, then the defendant is liable.

Examples of a Breach of Duty of Care in a Strict Liability Case

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.

Defenses to Breach of Duty

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, more or less, all the time. 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. They 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.

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 U.S. 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.

  • Comparative negligence: In these states, the court determines the percentage of fault each party has and then awards damages accordingly. Here, the plaintiff would recover $7,000.
  • Modified comparative negligence: In states that follow a modified version of the comparative negligence rule, the court will award damages only to the parties who are less than 50% at fault. Here, the plaintiff would get $10,000.
  • Contributory negligence: States that follow this rule—and there are only a few—award no damages to anyone who shares fault for the damages. In our example, neither party would get anything. In these few states, a defendant accused of breaching a duty can bar the plaintiff from recovering by proving they were as little as 1% responsible for the damages.

Frequently Asked Questions (FAQs)

What is the duty of care in personal injury law?

The duty of care in personal injury law can be summed up easily — you have a duty to not cause injury to others:

  • In a car accident, you have a duty of care to operate your car lawfully and not endanger others
  • In a slip and fall, a property owner has a duty to maintain property safely or warn others of potential hazards
  • In a medical malpractice case, a doctor or healthcare provider has a duty to meet the standard of care in providing treatment

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.

How do you prove a breach in the duty of care?

Proving that someone breached their duty of care is a three-step process. The first step is to establish what the duty of care is 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.

Is it hard to prove a breach of duty?

(Video) Law - Breach of duty: Risk factors explained

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.

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(Video) How Do You Prove Breach of Fiduciary Duty? | RMO Lawyers


What is a breach of duty in simple words? ›

Breach of duty occurs when a duty of care exists and was not followed. Breach of duty is an important component in negligence cases. For example, you have a duty of care to other drivers to drive under the speed limit and a duty of care not to drink and drive.

What is the legal test for breach of duty? ›

Breach of Duty of Care

The claimant only needs to prove that on the balance of probabilities the defendant that owed a duty of care failed to exercise reasonable care. The claimant needs to show that the defendant has caused the claimant to suffer loss.

What are the 4 conditions that must be met for a breach of statutory duty? ›

There must be a statutory duty owed to the claimant, there must be a breach of that duty by the defendant, there must be damage to the claimant, and that damage must have been caused by the breach of the statutory duty.

What factors must be established in order to successfully prove a breach of duty of care in tort law? ›

Establishing a breach of the duty of care—the four factors
  • probability of harm occurring.
  • seriousness of the harm should it occur.
  • utility of the defendant's activity.
  • cost of precautions.

What is a breach example? ›

Understanding a Breach of Contract

This includes when an obligation that is stated in the contract is not completed on time—for example, you are late with a rent payment—or when it is not fulfilled at all, such as a tenant vacating their apartment owing six months' back rent.

Which scenario is an example of breach of duty? ›

If the defendant's conduct fails to meet the required standard of care, they are said to have breached that duty. For example, a driver may breach his duty to other drivers to drive safely by texting while driving. Note that it is a question of fact for the jury to determine whether a defendant breached their duty.

What are the four 4 modes of breach of breach of obligation? ›

Generally speaking, there are four types of contract breaches: anticipatory, actual, minor and material.

What are the elements of breach of duty? ›

Breach of Duty of Care

It's not enough for a person to prove that another person owed them a duty. The personal injury lawyer must also prove that the negligent party breached their duty to the other person. A defendant breaches such a duty by failing to exercise reasonable care.

What are the three types of breach? ›

There are different types of breach of contracts, the most common being: Material Breach. Immaterial Breach. Anticipatory Breach.

How is breach of duty measured? ›

Breach occurs where a defendant has fallen below the particular standard of care demanded by the law. This is largely an objective test and is determined by comparing the actions of the defendant to those imagined to be done in the same circumstances by the so-called 'reasonable man'.

What is the difference between breach of duty and negligence? ›

For a defendant to be deemed negligent, he must have breached his duty of care towards the plaintiff. In order to be deemed as breaching the duty of care, his actions must be proven to fall below the standard of care likely to be taken by the reasonable man.

What are the 5 forms of remedy for breach of contract? ›

Some of the remedies that may be sought include suit for specific performance, damages and injunction.
  • Suit for Specific Performance. Specific performance is applied in breach of contract actions where monetary damages are inadequate. ...
  • Liquidated Damages. ...
  • Injunction.
22 Sept 2021

What 4 elements must be satisfied for an established breach in the duty of care? ›

A duty of care existed between the negligent person and the claimant; The negligent person breached their duty of care responsibilities; Injury or damage was suffered due to a negligent act or failure to exercise duty of care; A compensation claim for damages is established.

What four things must be proven in order to successfully prove negligence? ›

A Guide to the 4 Elements of Negligence
  • A Duty of Care. A duty of care is essentially an obligation that one party has toward another party to exercise a reasonable level of care given the circumstances. ...
  • A Breach of Duty. ...
  • Causation. ...
  • Damages.
12 Nov 2020

How does a court determine whether a defendant is in breach of his or her duty of care? ›

In order to establish that a defendant owes a claimant a duty of care, there must be (1) proximity between the claimant and defendant, in that the harm caused by the defendant was reasonably foreseeable, and (2) no policy consideration that negates the duty of care.

What is the full meaning of breach? ›

breach noun [C] (BROKEN PROMISE/RULE)

an act of breaking a law, promise, agreement, or relationship: They felt that our discussions with other companies constituted a breach of/in our agreement. He was sued for breach of contract. There have been serious security breaches (= breaks in our security system).

What are the 3 exception the definition of breach? ›

There are 3 exceptions: 1) unintentional acquisition, access, or use of PHI in good faith, 2) inadvertent disclosure to an authorized person at the same organization, 3) the receiver is unable to retain the PHI. @

How is breach defined? ›

1. : a failure to do what is required by a law, an agreement, or a duty : failure to act in a required or promised way — usually + of. [count] This is clearly a breach of the treaty. He was fined for committing a breach of the peace.

What is an example of a breach of fiduciary duty? ›

The fiduciary must act contrary to your best interests. A breach of fiduciary duty can be shown through deliberate acts, such as making decisions on your behalf without consent. You can also prove a breach through the fiduciary's failure to act—for example, not disclosing a conflict of interest.

Is breach of duty a crime? ›

Breach of a duty imposed on some person or body by a statute. The person or body in breach of the statutory duty is liable to any criminal penalty imposed by the statute, but may also be liable to pay damages to the person injured by the breach if he belongs to the class for whose protection the statute was passed.

What 3 elements must a breach of contract claim? ›

The basic breach of contract elements require you to prove:
  • There was a valid contract;
  • You performed your part of the contract;
  • The defendant failed to perform their part of the contract; and.
  • You sustained damages caused by the defendant's breach.
30 Sept 2021

What are the 3 consequences of a breach of contract? ›

The common consequence is reduction of the contract price, remedy of the defect, compensation for damage and interest for delay. It is only possible to rescind the contract when the breach is fundamental.

What is the most common breach of contract? ›

Compensatory damages: This is the most common breach of contract remedy. When compensatory damages are awarded, a court orders the person that breached the contract to pay the other person enough money to get what they were promised in the contract elsewhere.

What are the two types of breach? ›

A breach is a failure by a party to fulfil the obligations under a contract. It is of two types, namely, anticipatory breach and actual breach.

What is the difference between duty and breach of duty? ›

When your doctor or any other medical professional caring for you fails to provide you with a duty of care, it is considered a breach of that duty. The duty of care can also be broken when the doctor or other medical professional fails to act appropriately, and it leads to a negative impact on your health.

When determining if a duty was breached? ›

One fundamental question that courts ask when determining whether there was a breach of duty of care is if the defendant could foresee the risk of harm to the plaintiff and failed to prevent the harm from occurring.

What is the first breach rule? ›

The general rule of contract law sounds simple enough: When a contracting party commits a first breach, the other party is relieved of its obligations under the contract. This legal principle is known as the first breach, or prior breach, doctrine.

How can you legally breach a contract? ›

A breach of contract occurs when one party fails to perform a material term of the contract.
Four Ways to Breach a Contract, and Their Legal Remedies
  1. substantial performance;
  2. material breach;
  3. minor breach; and.
  4. anticipatory repudiation.
5 Mar 2021

What are the 4 examples of negligence? ›

While seemingly straightforward, the concept of negligence itself can also be broken down into four types of negligence: gross negligence, comparative negligence, contributory negligence, and vicarious negligence or vicarious liability.

What are two consequences of breaching your duty of care? ›

When a duty of care is owed to a person, and it is breached resulting in injury or damage, the injured person can sue the person who breached the duty of care for damages, which can include: Compensation for pain and suffering, and loss of enjoyment of life caused by physical injury, psychological injury or both.

How do you prove negligence of duty? ›

In order to prove that an act was negligent, it is necessary to prove all the essentials namely duty, breach of duty, damages and actual and proximate cause. An important maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained.

What are the 4 elements the plaintiff must prove in a breach of contract case? ›

The existence of a contract; Performance by the plaintiff or some justification for nonperformance; Failure to perform the contract by the defendant; and, Resulting damages to the plaintiff.

What are two remedies that a court can award for breach of contract? ›

Remedies for Breach of Contract
  • Repudiation. If the other party breaches a condition of the contract, you may be able to 'repudiate' the contract to terminate it and claim damages for your loss - or to 'affirm' the contract and claim damages. ...
  • Damages. ...
  • Specific Performance.

What is an example of a legal remedy? ›

A Legal remedy is a legal process in which people who have been harmed can seek compensation for their losses. Damages, injunctions, and specific performance are some examples of legal remedies.

What is the most difficult element of negligence to prove? ›

Many articles discuss what negligence is and how to prove it, but the least understood element among these four is causation. Additionally, out of these four elements, causation is typically the most difficult to prove, especially in medical malpractice cases.

What is first required in order to determine whether a breach of a duty of care has occurred? ›

The plaintiff must prove that the defendant (occupier, school, municipality, teacher, etc.) did not live up to the standard of care of a reasonable person in preventing the harm the plaintiff suffered.

What are the three circumstances which determine whether a person breaches a duty of care or not? ›

the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and. the potential net benefit of the activity that exposes others to the risk of harm.

What action must occur to prove a breach of duty? ›

To prove another party breached their duty of care, you must show they failed to act like a reasonable person and injured you. The reasonable person is a standard of behavior juries use to determine if someone was negligent.

What are the 3 defenses against negligence? ›

The most common negligence defenses are contributory negligence, comparative negligence, and assumption of risk.

What is the burden of proof in a negligence claim? ›

In a negligence case, the aggrieved party (plaintiff) bears the burden of proof to show each element of their cause of action by a preponderance of the evidence.

What is an example of duty of care? ›

Examples in Duty of Care

Dignified and courteous treatment. Your culture, diversity and identity are valued as well as supported. Living a life free of abuse and neglect. Your independence.

How do you establish breach of duty in negligence? ›

Element 2 – breach of duty of care

This standard consists of the actions which the court considers a 'reasonable person' would have taken in the circumstances. If the defendant failed to act reasonably given their duty of care, then they will be found to have breached it.

What's the meaning of breach? ›

noun. ˈbrēch. : infraction or violation of a law, obligation, tie, or standard. a breach of trust. sued them for breach of contract.

What is a breach of duty of being careful? ›

Negligence: A breach of the standard of care that is owed by a person who has a duty of care. This usually includes doing or not doing something, that a reasonable person would do or not do, considering the circumstances and the knowledge of parties involved.

What is a breach in the workplace? ›

If you do not fulfil your duties or obligations, you are in breach of the Work Health and Safety Act 2011 (WHS Act) or the Electrical Safety Act 2002 (ES Act) and could be prosecuted. Examples of breaches of the WHS Act include: exposing workers to the risk of excessive noise.

What are the 3 types of breaching? ›

Four Breaching Options

SWAT cops usually have four types of breaching options at their disposal: mechanical, ballistic, thermal and explosive.

What is breach of trust in law? ›

Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to ...


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