“Breach of duty” is the second of the four elements of a Texas personal injury claim based on negligence. This element can apply to anything from a car crash to a slip and fall injury. Proving breach of duty can be extremely challenging without the assistance of an experienced Texas personal injury lawyer.
The Four Elements of a Negligence Claim
The elements of a personal injury claim are the facts you need to prove to win:
- Duty of care
- Breach of duty
- Harm (typically a physical injury, perhaps accompanied by emotional distress)
- Causation (the defendant’s breach of duty was the foreseeable cause of the harm)
You must prove all four of these elements to win. Duty of care and breach of duty are so closely related that it is almost meaningless to speak of one without reference to the other.
The Various Versions of the Duty of Care
Negligence claims rely on various versions of the “duty of care” that apply to every negligence claim. Here are some examples:
- Duty of ordinary care: A duty that applies to every mentally competent adult. The essence of this duty is to use common sense to avoid injuring others. Drive safely, for example. If you live in a high-rise, don’t throw objects out the window.
- Professional duty of care: Obligates professionals, such as doctors, to use the care and skill of a reasonably competent professional when performing their duties.
- Landowner’s duty of care: Obligates the owner or operator of real property to exercise care to prevent injuries to visitors due to dangerous conditions on the property. For example, businesses must inspect their premises for hidden dangers to their customers.
- Common carrier duty of care: Obligates operators of buses, trains, planes, and other forms of mass transportation to exercise a particularly high duty of care to ensure the safety of their passengers.
- Duty to warn: Obligates a product manufacturer to warn doctors and consumers of the potential dangers of a product (“Should Not be Taken By Pregnant Women,” for example). Complying with this duty typically involves a great deal of research.
- Duty of care in entrustment: Obligates someone who entrusts a third party with the operation of a “dangerous instrumentality,” such as an automobile, to entrust it only to persons who are prudent and competent.
- Duty of care in special relationships: Requires certain people, such as parents, to exercise special care to protect the people whose care they are entrusted with.
- Statutory duties of care: Depends on the language of a statute. The highway speed limit, for example, defines a duty of care for an automobile driver.
The specific duty of care that applies in an individual case depends on the circumstances and the relationship between the parties.
Proving Breach of Duty
To prove a breach of duty in a negligence claim, you would need various types of evidence depending on the facts of your case. Here are some common types of evidence that might be necessary:
- Accident reports: Inadmissible in court but useful in settlement negotiations.
- Medical records: These are highly credible because, except in medical malpractice lawsuits, the healthcare professionals who generate these records are neutral third parties. They are also professionals who know what they are talking about.
- Repair and maintenance records
- Contracts or Agreements: These can help establish the defendant’s duty of care.
- Emails, texts, and correspondence: Written communications may provide insight into the defendant’s behavior. Never talk about your case on social media, by the way, because the opposing party can use these posts against you as evidence.
- Photos and videos
- Damaged property: A defective product, for example.
- Eyewitnesses: Individuals who saw the event.
- Expert witnesses: Doctors, engineers, or safety experts can provide testimony about the standard of care and how the defendant failed to meet it.
There are dozens of other possible ways to prove your negligence claim.
Expert Testimony
What, exactly, was the defendant’s duty of care under the circumstances of the case? Should a cardiologist have ordered certain lab tests in response to their patient’s complaints, for example? In some areas of law, especially medical malpractice, expert testimony on this issue is routine, even the norm.
Breach of the duty of care occurs when the defendant fails to meet whatever demands their duty of care places upon them. There are two ways that a defendant can breach their duty of care—by doing something they shouldn’t have done (a breach of commission) and by failing to do something they should have done (a breach of omission).
Even if you have clearly defined the defendant’s duty of care (it is defined by statute, for example), you might still need expert testimony to prove that the defendant breached their duty.
Beware the Statute of Limitations Deadline
In Texas, you usually have only two years to either file a personal injury lawsuit or finalize a settlement. If you miss the applicable deadline, no court will accept your claim.
Contact the Dallas Personal Injury Law Firm of Bush Personal Injury and Car Accident Lawyers LLC Today For Help
For more information, please contact the Dallas personal injury law firm of Bush Personal Injury and Car Accident Lawyers to schedule a free consultation today.
Our office is conveniently located in Dallas, near the Dallas Downtown Historic District. We serve statewide throughout Texas.
Bush Personal Injury and Car Accident Lawyers LLC
701 Commerce Street, Suite 703
Dallas, TX 75202
(214) 615-6394