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  • Negligence - Breach of Duty

Negligence - Breach of Duty

Breach of Duty: Ordinary Care & the Reasonableness Standard

For the first element of a negligence claim, the plaintiff had to prove they were owed a legal duty by the defendant. For the second element of a negligence claim, the plaintiff must prove breach of that duty by the defendant. Please click here for an in depth explanation of legal duty. When someone owes a legal duty, they owe a certain standard of care, and it is a breach of duty when they do not abide by that standard of care. The basic standard of care is “ordinary care” which is determined by a “reasonableness standard”; simply put, it’s what a reasonably cautious person would use to avoid causing harm to others under similar circumstances. This is the “reasonableness standard” because it is based on what a reasonably careful person would do, or in short, what is reasonable. When a defendant owed a duty of ordinary care, the court will always use the reasonableness standard to determine whether the defendant breached this duty; but what the court considers reasonable will be different from case to case. The court will look at the specific circumstances and facts of each case, and decide how a reasonably cautious person would have behaved in the defendant’s shoes. In other words, how a typical person from the community would have acted in the same situation.

How can someone breach a duty of care?

It’s important to note that there are two ways to breach a duty of ordinary care. There is the kind of breach when the defendant does something a reasonable person wouldn’t do, and there is also the kind of breach when the defendant doesn’t do something a reasonable person would do. In other words, someone can breach a duty of ordinary care by either:

  1. acting in a way that a reasonable person would not act to avoid causing harm to others, or
  2. by failing to act in a way that a reasonable person would to avoid causing harm to others.

Ways to Breach, various levels of care

“Ordinary Care” is the normal standard that applies, but depending on the defendant’s circumstances, a special standard might apply. Also, depending on the situation, the activity that the defendant engaged in may also change the level of care. Below are the various levels of care:

Special Care for Inherently Dangerous or Ultra Hazardous Activities

A person doing work that’s considered dangerous by its nature must use the same level of care that a reasonably careful person would use under similar circumstances (taking into account the dangerous nature of the activity). Compared to our default standard of “ordinary care,” the only difference is that here we consider the amount of danger involved in the work. For example, a worker who handles explosive material on a daily basis has a duty to protect the public as a reasonable person would taking into account the level of danger involved in the work. So a worker who handles explosives or combustible gases will be held to a higher standard of care than a worker who handles harmless retail items like purses. This is to say, a worker who handles explosives has the duty of care to act as a reasonable person working with explosives would act.

Special Care Required from Particular Defendants

  • Professionals and Other Skilled Workers: Here we’re talking about doctors, lawyers, accountants, engineers, and other skilled workers. These individuals have a higher standard of care than the default “ordinary care” standard. Professionals must use a level of care that matches the special skill set of professionals within that field. For example, a doctor needs to use a level of care that another reasonable doctor within that field would use; a lawyer needs to use a level of care that another reasonable lawyer within that field would use, and so on. To better understand what level of care each professional industry requires, we look at the customs and practices of the industry as well as the special skills of the business. To determine if the defendant’s behavior met the appropriate standard of care, the court looks at evidence of customary behavior within the specific professional community, usually by hearing testimony from expert witnesses. If the defendant acted in a way that doesn’t follow the industry standard, it can be evidence of their breach of duty. Don’t be thrown off by the word “professional” because it’s given broad meaning under the law. Most trades that require special skills can be considered “professional” and require the Defendant to act in accordance with what others in that field would do. More in depth information about negligent professionals can be found under Professional Liability.
  • Common Carriers: Common carriers are bus drivers, truck drivers, and anyone else who professionally transports people or cargo. A common carrier owes an especially high degree of care to its passengers, higher than the reasonable person standard. Instead of asking how a reasonable person would behave in the defendant’s shoes, the court looks at how a “very cautious, prudent and competent” person would behave in a similar situation [1]. More in depth information can be found under Common Carriers.
  • Landowners and Occupiers: Landowners and occupiers (aka tenants) owe a certain duty of care to those who enter onto their property. In order to determine what level of care is owed, we first must determine the status of the plaintiff (the person who was on another’s land). The plaintiff can either be a trespasser, an invitee, or a licensee- it all depends on how they got onto the land. A trespasser is someone who came onto the land without the owner’s permission, an invitee is someone who was invited onto the land, and a licensee is someone who is permitted to enter the property (for example, a shopper at a retail store is a licensee). This area of law is called premise liability and the standards of care associated with each category are described in greater detail here.
  • Employers: Employers must have rules in place to protect the safety of their employees. This is done by providing proper training to employees, having a safe work equipment, and hiring employees who are capable of performing the assigned work. There is no requirement to adopt safety rules if the nature of the business isn’t hazardous or if the work dangers are considered common sense by the employees. So long as an employer provides at least one safe method of getting the job done, they can’t be held responsible if the employee gets injured performing the work a different way. Generally speaking, employers usually can’t be sued for negligence when the employee’s injury happens while working and is within the scope of their employment. In these situations, Workers’ Compensation typically pays for the employee’s injury. It’s important to note that employers can be sued in other ways beside negligence.
  • Alcohol Providers: There are two main categories of alcohol providers: commercial suppliers (such as a restaurant or a facility serving alcohol) and social hosts (such as your neighbor throwing a party).
    • Commercial Providers of alcoholic beverages must follow the Texas dram shop statute [2]. A person who sells or serves alcoholic beverages with a liquor license or someone who sells liquor without a license is considered a “provider [3].” A party can sue a commercial alcohol provider if they were injured as a result of their own intoxication, or if they were injured by an intoxicated third party [4]. Importantly, the law ONLY applies under the following circumstances:
      • The person or business must provide the alcohol directly to the intoxicated party [5].
      • It must be clear to the provider that the person receiving alcohol was “obviously intoxicated” to the point where he/she “presented a clear danger”themselves or to others *AND*
      • The intoxication was the proximate cause (link to proximate cause article) of the ensuing harm. See Texas dram shop statute.
          POSSIBLE DEFENSE: Many restaurant and bar employees are trained under the Alcoholic Beverage Code, which may provide a defense to employees who illegally serve alcohol to an intoxicated person or a minor [6]. The business will only be held responsible for their employee’s actions if: 1) the employer required the employee to attend a training program approved by the TX Alcoholic Beverage Commission; 2) the employee attended the training, AND; 3) the employer didn’t directly or indirectly encourage the employee to violate alcohol laws [7].
        • Social Hosts have no legal duty to avoid serving alcoholic beverages to adult guests [8]. If an adult over the age of 21 (who isn’t a parent, guardian, or spouse) serves alcohol to a minor under the age of 18, the adult can be held responsible for any damages the minor caused while intoxicated, so long as there’s a relation between intoxication and the damages [9]. The adult who provided alcohol to a minor can be held responsible if they either served the minor themselves, or if they allowed the minor to be served on their property [10]. If the person being provided alcohol is 18 years of age or older, the Texas dram shop statute (previously mentioned under “commercial providers”) will apply.

      • People playing sports owe other participants a legal duty to not act “recklessly,” and to not “intentionally” cause an injury that may happen naturally in the sport. This is different from the usual standard of reasonable care, because participants in sports knowingly take on certain risks [11]. This rule can apply to contact sports as well as noncontact sports [12]. But what counts as “reckless” or “intentional” behavior? A behavior is reckless if the person consciously does something that may cause serious dangers to others or if a reasonable person would be aware of the dangers their actions may cause. Intentional behavior requires the person to know what they’re doing or have knowledge that what they’re doing will cause a certain result (in a sports situation the person must know what they’re doing creates a dangerous degree of risk [13].) It’s important to note that the injury must be a type of injury that would normally be associated with the sport. As with all areas of the law, sports related negligence law is evolving. In 2007 a case from Houston established that a sports participant owes a basic ordinary care duty to other participants for risks that are not natural for that sport. For example, a golfer wouldn’t expect to break their leg while putting because broken bones are not typically a risk while playing golf [14].
      • Animal Owners The kind of duty owed by an animal owner depends on the type of animal and how dangerous it is.
        • Wild Animals: Owners of wild animals are legally responsible for injuries their animal causes to anyone (except trespassers) when the injury occurred as a result of the dangerous nature of that specific animal. For example, lions are known to be dangerous animals so if someone owns a lion and it injures someone (because lions are unsafe animals), the owner will be responsible. This rule does not apply if the wild animal is peaceful and does not have dangerous tendencies (such as a dove).
          • Horseback riding and farm animal activities: Under Texas law, participants in these activities are assumed to have agreed to a certain level of risk, mainly because these types of animals are unpredictable [15].. In certain situations, such as a trainer providing faulty equipment or wrongly assessing the participant’s abilities, the trainer or owner of the animal may be held legally responsible for injuries[16].
        • Domestic Animals: Owners of domestic pets are legally responsible for injuries their pet causes to anyone (except trespassers) when the owner knows, or should know, that the animal has dangerous tendencies which are not standard for that type of animal. For example, Labradors are generally gentle dogs and aren’t considered dangerous, but an owner may have an aggressive Lab; that aggressive Lab would be considered a domestic animal with “dangerous propensities abnormal to its class” because most Labs aren’t naturally dangerous.
          • Dog Bite Laws: The statute of limitations (the deadline for how long someone has to file a claim) for dog bite cases is two years. In Texas, there isn’t a specific law about dog bite cases, but the Supreme Court has adopted what’s commonly known as the “one bite rule [17].” The one bite rule means that if someone gets bit by a dog, they can recover damages if: (1) the owner knew that the dog has bit someone before or behaved violently OR (2) the owner was negligent in supervising their animal and the injury happened only because the owner was negligent in controlling their animal [18].
          • Dog Leash Laws: Most counties in Texas have dog leash laws requiring owners to keep their animals on a leash when they’re out in a public area walking. If someone gets attacked by an unleashed dog, the owner can generally be held legally responsible for injuries. Each county will slightly vary.
          • Dangerous Dog Laws: In Texas, an owner of a “dangerous dog” can be criminally charged with a misdemeanor if the dog makes an unprovoked attack on someone outside of their home and the attack causes serious bodily injury. Although there is no law on the books in Texas that provides civil remedies for dangerous dogs, there are still ways someone can recover money if they’ve been injured. Within 30 days after learning their dog is dangerous, owners must get liability insurance for $100,000 specifically to cover bodily injuries caused from the dangerous dog and always keep their animal contained or leashed. Because there are criminal laws in place regarding dangerous dogs, owners can be held legally responsible for injuries caused by their animal. See negligence per se.
            • COMMON DEFENSES: Common defenses to these types of injuries are that either the owner didn’t know that their animal was dangerous (and had no reason to know) or that the person who was injured “assumed the risk.” Also, if the injured person was trespassing on the property, that provides a defense from liability. In order to combat these defenses, the plaintiff would need to show that the owner knew, or should have known, that the animal was dangerous or that the injured party did not assume the risk of getting injured. There are also special defenses for those who work directly with animals (such as vets, animal control workers, animal trainers, etc.)

        How do we determine if there was a breach?

        The technical term for who gets to decide if there was breach is the “trier of fact.” The trier of fact will either be the Judge or a Jury (this is the Plaintiff’s choice, and typically a jury trial is chosen). The plaintiff and defendant will present their arguments at trial, and then the trier of fact will decide if there was a breach of duty.

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