What is a Breach of the Duty of Care?

Negligence entails unreasonable behavior that breaches the duty of care that the defendant owes to the Plaintiff. 

This standard is known as the reasonable person standard.

What is unreasonable behavior that constitutes a breach of duty under tort law?

Whether conduct is unreasonable is a mixed question of law and fact. 

The duty of care exists under the law, but the determination of what is reasonable may be unreasonable in another situation. 

In determining whether conduct is unreasonable, a court will consider the likelihood that the defendant's conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk. 

Notably, the reasonable person standard of care is an objective standard based upon the nature of the relationship and the subjective characteristics of the plaintiff.

• Note: A professional, such as a doctor, will be held to the standard of a reasonable professional in a given situation. A failure of a professional to act reasonably within the scope of her duties is known as malpractice. Further, a large person interacting with a small child may owe a higher standard of care to avoid harmful physical contact than a small person interacting with a large person.

Can Inaction be Unreasonable Behavior?

In some situations, inaction may constitute unreasonable behavior. 

This is true when a special relationship exists or one individual causes the risk of harm to the other person. 

In such a situation, an individual incurs an affirmative duty to act. 

Failing to act drops below a reasonable standard of care.

• Example: A mother fails to help her child cross the street. If the child strays into traffic and is injured, the mother's inaction is negligent in causing harm to the child. A mother is assumed to act in the best interest of her child, such that others will not act assuming the mother will act. I push a non-swimmer into deep water, I now have a duty to act reasonably in preventing that person from drowning. My inaction to rescue her will result in liability.

What is Gross Negligence?

Negligence generally entails a simple failure to meet the standard of care owed to others. Gross negligence, in contrast, is a severe departure from the standard owed.

• Example: I am rock climbing with a friend. I do not hook our climbing rope in carabiners every 5 feet, as recommended. I think we will make better time if I hook the rope every 15 feet. When my friend slips, he falls 15 feet, rather than 5 feet, before the rope catches him. This causes him to slam very hard into the rock face. This may be an example of gross negligence. I may not have intended the result or appreciated the risk, by my actions fall way below an acceptable standard of care.

What is Reckless & Wanton Behavior?

Reckless behavior demonstrates a complete disregard for the potentially harmful consequences of one's conduct. It generally requires a defendant to appreciate the nature and severity of the potential harm that may arise from the conduct. Though it does not entail intent to cause them harm, it shows an extreme lack of due care. Such conduct falls below the standard of care owed to other individuals and constitutes negligence. In some jurisdictions, reckless conduct is known as aggravated negligence. The law frequently allows a plaintiff to recover punitive damages as well as actual damages in such situations.

• Example: Shooting an arrow up into the air without knowing whether anyone will be harmed by the arrow could be reckless conduct.

What is Res Ipsa Loquitur?

Two situations exist where a defendant may either be held liable without a showing of unreasonable conduct or the unreasonableness of conduct is inferred from the facts of the situation.

Res Ipsa Loquitur posits that in some situations the very nature of the accident or situation indicates that the conduct of the defendant was negligent. That is, this type of harm would not have occurred in the absence of negligence by someone in the defendant's position. As such, it is not necessary to demonstrate how a reasonable person would or should have acted in the situation.

• Example: Tom is walking by a building when a potted plant falls on his head. It is apparent that the potted plant fell from the room of the building where there is a community garden. Ginny keeps a garden and is present in the garden when the plant falls. There is no evidence that Ginny intentionally dropped the plant or that she was negligent in allowing the plant to fall, but this could result in her liability for negligence pursuant to res ipsa loquitur. It is abnormal that a plant would fall from the top of the building unless someone was negligent in her actions causing the resultant harm.

What is Negligence Per Se?

Negligence per se posits that a failure to meet a standard or guideline, often established by a statute or regulation, means an individual is negligent without examining whether the individual's conduct in the situation was reasonable.

• Example: A professional practice group may establish standards of conduct for its employees. If an employee does not comply with that standard, it could be negligence per se. Violating the standards is assumed negligent without a demonstration of how a reasonable person would act. Further, if an individual is involved in a car crash while speeding, the violation of the speed limit may demonstrate negligence per se without a need to show that a reasonable person would not have been driving at that rate of speed.

Related Topics

• Tort Law (Intro)
• What are Torts?
• What are the types of torts?
• What are Intentional Torts?
• Unintentional Tort
• Assault and Battery?
• Intentional Infliction of Emotions Distress?
• Invasion of Privacy?
• False Imprisonment?
• Malicious Prosecution?
• Trespass?
• Conversion?
• Defamation?
• Defenses to Defamation?
• Absolute Privilege
• Defamation and 1st Amendment Considerations?
• Fraud?
• Intentional Interference with Contractual Relations?
• What is Negligence?
• Negligence A Duty of Care?
• Negligence Breach of Duty of Care?
• Causation?
• Cause-in-Fact
• What are common defenses to negligence actions?
• What is Strict Liability?
• Strict Liability Causes of Action Examples
• Strict Products Liability
• What defenses exist to strict product liability actions?
• Compensatory damages?
• Punitive damages?
• Treble Damages