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Breach of Duty

Breach of Duty

“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.

The Difference Between Negligence and Liability

The Difference Between Negligence and Liability

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.

Duties of Care

Most cases involve the application of one of three main forms of the duty of care:

  • The ordinary duty of care: The duty of care that every mentally competent adult owes everyone else. This duty is simply the duty to act with reasonable care not to injure someone else.
  • The professional duty of care: The duty of care that a cardiologist owes a patient undergoing open heart surgery is a lot higher than the duty of care of an average citizen rendering first aid at the scene of a car accident. This is because a cardiologist, being the recipient of extensive training, owes their patients an elevated professional duty of care to their patients.
  • Premises liability: The owner or operator of premises may have a duty of care towards guests on their property to (i) repair or warn of any known dangerous conditions on their property, and (ii) to conduct a reasonable inspection of the property and either repair or warn of any non-obvious hazards.

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? 

Ways To Prove Breach of Duty

Oregon law offers several ways to prove breach of duty. Below are descriptions of three of those ways.

Common Sense

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

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. 

Res Ipsa Loquitur

To win a negligence claim using res ipsa loquitur, you need to prove the following elements:

  • The type of accident that occurred doesn’t normally occur without negligence. For example, a hammer falls from the top of an unfinished building and hits a pedestrian at street level.
  • The injury was caused by an instrument that was solely in the defendant’s control.
  • The victim did not contribute to the cause of the accident. 


Res ipsa loquitur is another shortcut to proving liability when you cannot directly prove negligence.

Expert Witness Testimony

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).

  • Cause in fact is present when the injury would not have occurred but for the defendant’s breach of duty.
  • Even if cause in fact is present, the defendant will not be liable if a reasonable person could not have foreseen that the breach of duty would lead to the injury that occurred. In other words, there must be a reasonably close relationship between the breach of duty and the harm that the defendant suffered.

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.

A Skilled Portland Personal Injury Lawyer Can Help You Establish Breach of Duty

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.

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