Breach of Duty

“Breach of duty” is one of the four facts you have to prove to win a negligence claim in a personal injury case.

Once you prove the existence of a duty of care and the fact that the defendant breached that duty, you must also prove that the defendant’s breach of duty caused your injuries.



Suppose Anne was “tailgating” Bruce. When traffic became congested, Bruce slowed down. Anne’s car then hit Bruce’s car, causing a car wreck that injured Bruce.

To win a personal injury claim against Ann, Bruce would need to prove:

  • Anne owed Bruce a duty of care. This is easy because all drivers on public roads owe a duty of reasonable care to all other drivers and passengers.
  • Anne breached (violated) her duty of care. By following Bruce too closely, Anne probably violated her duty to maintain a safe distance from the car ahead of her.
  • Bruce suffered damages (losses) in a collision with Anne. Bruce might introduce medical expenses into evidence.
  • Anne’s “tailgating” was a foreseeable cause of the collision that injured Bruce.

If Bruce can prove the four foregoing facts on a “more likely than not” basis, he can win his claim against Anne. Anne would then owe Bruce compensation for his physical, emotional, and financial losses from the accident. 

Duty of Care

Everyone except a small child owes a duty of care to avoid injuring others in certain situations. In addition to the duty to drive safely, the following duties of care commonly arise in personal injury cases:

  • A physician’s professional duty of professional care towards their patients. The exact nature of this duty depends on training, experience, and circumstances.
  • A “common carrier,” such as an airline, must take particular care to avoid injuring their passengers.
  • The owner or manager of real property owes their guests (shoppers in a mall, for example) a duty to keep their premises safe. They must either repair or warn of any dangerous conditions.
  • Nursing homes owe a high duty of care to their residents.
  • Commercial truckers must comply with extensive trucking regulations on the federal and state levels.
  • Bar and nightclub owners must refrain from serving alcohol to obviously intoxicated customers. If they serve such a customer and the customer goes on to hurt someone (in a DUI accident, for example), they might bear liability under the Texas dram shop law.
  • A trucking company must examine a prospective driver’s driving record and refrain from hiring a trucker with a questionable driving record.

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

Examples of Breach of Duty

Following are some typical examples of breach of duty that commonly arise in personal injury lawsuits:

  • Texting while driving;
  • Following another car too closely;
  • Mopping the floor without erecting a “Wet Floor” sign;
  • Failing to replace a blown lightbulb in a dark stairwell;
  • Failure to order lab tests after a patient complains of symptoms that would prompt a reasonable doctor to order tests;
  • Leaving a surgical instrument inside a patient’s body during surgery; and
  • Failing to replace bald tires.

A breach of duty does not have to violate the law to trigger civil liability.

How To Prove Breach of Duty

Following are the three most common tactics that lawyers use to prove a duty of care. These methods apply to private settlements as well as courtroom trials:

  • Common sense: Use witnesses and physical evidence to put the facts before the court and let the jury decide. Common sense also applies in out-of-court settlement negotiations.
  • Negligence per se: Proving that the defendant violated a safety law can provide a shortcut to proving a breach of duty
  • Expert testimony: This is routine in medical malpractice cases, for example.

There are many other ways to prove the defendant’s duty of care. 

When You Don’t Have To Prove Breach of Duty: Proving Liability in Strict Liability Cases

Strict liability means liability without proof of fault. Following are some examples:

  • Product liability: Proof that a defective and unreasonably dangerous product injured someone can support liability. The law assumes someone must have breached their duty of care; otherwise, the product would not have been defective in the first place.
  • Dog bites: Proof that the bite occurred and that the owner knew that the dog had bitten before results in liability. There is no need to specifically prove that the dog owner acted carelessly.
  • Ultrahazardous activities: When you engage in an uncommon activity that carries with it an inherent risk, you essentially become an insurer against any resulting injuries. Examples include storing explosives, disposing of hazardous waste, and operating a bulldozer.

As you can see, you don’t have to prove that the defendant breached a duty of care to win a strict liability claim. Nevertheless, the results are the same in that the defendant bears liability if you can prove certain facts. 

It Only Matters What You Can Prove, and a Dallas Personal Injury Lawyer Can Help

Unfortunately, the truth doesn’t matter in a personal injury claim unless you can prove it with admissible evidence. However, identifying and assembling admissible evidence is only one of several ways that a Dallas personal injury lawyer can help you.

Contact Jay Murray Personal Injury Lawyers for a free initial consultation at (214) 855-1420.