Breach of Duty
A “duty” is a legal obligation to do or not to do something. In personal injury law, “duty of care” means (at the very least) using ordinary common sense to avoid causing injury to others. Almost any competent person has a duty to exercise this much common sense. If you are a trained professional, you are subject to an elevated duty of care.
The Four Elements of a Negligence Claim
In legal parlance, the word “negligence” refers to something like carelessness. To win an ordinary negligence claim, you need to prove the existence of the following four legal elements:
- Duty of care: The defendant owed you a duty of care, even if it amounted to nothing more than the duty to use common sense to avoid injuring you.
- Breach of duty: The defendant did something that their duty of care forbade or failed to do something that their duty of care demanded.
- Damages: You suffered losses that Louisiana law provides a remedy for. If you claim $12,000 in damages, for example, you must prove $12,000.
- Causation: You would not have suffered your injuries if the defendant had not breached their duty (cause in fact). Also, your injuries were a foreseeable result of the defendant’s breach of duty (proximate cause).
To establish liability, you have to prove all of the foregoing elements by a “preponderance of the evidence.” Missing a single element will defeat your claim.
The “Preponderance of the Evidence” Standard
You have a “preponderance of the evidence” when your evidence is enough to convince the court that there is at least a 51% chance that whatever you are trying to prove is true.
Proving the Existence of a Duty of Care
When it comes to ordinary negligence, you can generally assume that the defendant is subject to an ordinary duty of care. The only exceptions would be children, the mentally incompetent, and other incapacitated people. These people’s duties of care would depend on their capabilities.
Professional Duty of Care
An emergency medical technician owes their patient a much greater duty of care than a plumber who renders first aid at the scene of a slip and fall accident. Likewise, a cardiologist is subject to a much higher duty of care during open heart surgery than an emergency medical technician.
Professionals enjoy the benefit of training and experience that other people lack. Louisiana expects professionals to meet an enhanced, professional duty of care. A physician who violates their professional duty of care, for example, might face a medical malpractice lawsuit.
Proving Breach of Duty
How do you prove breach of duty? In ordinary negligence cases, you would probably apply the “reasonable person” standard to determine if the defendant behaved in a negligent manner.
The “Reasonable Person” Standard
How do you know when someone has breached their duty? In an ordinary negligence claim (as opposed to, say, a medical malpractice claim), the “reasonable person” standard determines whether you were negligent. The reasonable person is fictional-–they do not actually exist. If they did exist, however, they would always make reasonable, prudent decisions.
Suppose, for example, that the defendant was “tailgating” you on the highway. When you slowed down, they hit your car and caused you to suffer a concussion. Would a “reasonable person” have behaved in this manner? If not, then the defendant breached their duty of care to you.
Negligence Per Se
Negligence per se is an alternative to proving breach of duty using the “reasonable person” standard. Ultimately, negligence per se is a legal doctrine that allows you a shortcut to proving breach of duty.
Breach of duty occurs when a defendant violates a safety law or regulation. When that happens, you don’t need to exercise judgment to determine whether the defendant breached their duty of care, because negligence is automatic under those circumstances.
Breach of Professional Duty
In a personal injury context, breach of professional duty typically means a medical malpractice claim. Frequently, victims need the testimony of a medical expert witness to establish breach of duty. The question becomes, “What would a reasonable doctor of equivalent training and experience have done in this situation?”
Examples of Breach of Duty
Below are some common examples of breach of duty:
- Texting while driving;
- Running a red light;
- Following another vehicle too closely;
- Failing to erect a “Wet Floor” sign after mopping;
- Leaving a pair of roller skates on the top stair of a dark stairwell.
- Ignoring symptoms that would prompt a reasonable doctor to order tests.
- Performing surgery on the wrong kidney; or
- Failing to properly maintain your brakes, resulting in dangerously long stopping distances.
There are a thousand more ways that someone can breach their duty of care.
Do You Need a Baton Rouge Personal Injury Attorney?
You may or may not need a Baton Rouge personal injury attorney. That depends on a lot of factors, the most important of which is the size of your claim. The higher the value of your claim, the harder the opposing party (probably an insurance company) will fight against it. The harder the opposing party fights, the more you will need a lawyer.
Further, since most attorneys in this area of the law offer free consultations, it’s likely worth your time to set up a time to meet to determine whether you need their assistance.