“Breach of duty” is one of the legal elements of a typical negligence claim. To prove breach of duty, you must first prove that the defendant owed you a duty of care. Proving breach of duty isn’t enough by itself to win you compensation, however. You must also prove that you suffered damages and that the defendant’s breach of duty was the cause of your damages.
Remember this much: duty of care plus breach of duty equals negligence. Negligence plus damages and causation equals liability. And proving liability means money in your pocket. In any case, you must prove breach of duty to win a negligence claim; there is simply no way around it.
Most cases involve the application of one of three main forms of the duty of care:
It is the exact nature of the defendant’s duty of care in a given situation that determines whether they breached their duty. After all, how do you know whether the defendant breached their duty unless you know exactly what that duty was?
Oregon law offers several ways to prove breach of duty. Below are descriptions of three of those ways.
Suppose, for example, that the defendant was following the victim too closely and thereby caused a car accident when the victim was forced to slow down suddenly.
Negligence per se is a shortcut to proving negligence. It applies if the defendant causes the injury by violating a safety law or regulation. Running a red light is a classic example. In “common sense” negligence cases, it is a judgment call whether the defendant was negligent.
On the other hand, when the defendant causes an accident by violating a safety regulation, it is an open-and-shut case of negligence. You don’t have to exercise judgment. Tailgating, for example, may or may not constitute negligence. After all, exactly how close is too close? Running a red light is negligence, period.
To win a negligence claim using res ipsa loquitur, you need to prove the following elements:
Res ipsa loquitur is another shortcut to proving liability when you cannot directly prove negligence.
In complex cases, especially medical malpractice claims, you might need an expert witness to establish both the defendant’s duty of care and their breach of duty.
How can you prove, for example, that the doctor should have ordered a C-section during a difficult delivery to prevent injury to the infant? To do so, you will probably need an expert medical witness.
Causation comes in two forms in this context: cause in fact, and proximate cause (otherwise known as foreseeability).
Once you prove duty of care, breach of duty, cause of fact, and proximate cause, you are entitled to whatever damages you suffered as a result of the defendant’s negligence.
Sometimes breach of duty is easy to prove, and sometimes it isn’t. An experienced Portland personal injury lawyer will have working relationships with expert witnesses, and these lawyers know many ways to prove breach of duty. If your claim involves a significant amount of money, don’t even try to represent yourself; hire a lawyer.