The element of duty is usually defined by a very general rule that states that the court shall determine whether there is a duty is based on considerations of policy. Because the existence of a duty is determined by the court rather than a jury, if ever a duty exists, it is said to be a question of law. The rule defining when a duty exists does not prescribe any specific facts that must be present for a duty to exist but simply authorizes the court to consider any fact relevant to what it considers a legitimate policy consideration.
This does not mean that the law is completely indeterminate on the issue of whether a duty exists. In fact, the case law has given rise to a number of rules that declare that a duty does or does not exist in specific factual settings.
Thus, for example, most courts hold that all individuals have a duty not to cause physical injury to those who expectedly might be harmed by a failure to exercise reasonable care. At the same time, perhaps all courts hold that a lawyer has no duty to exercise reasonable care to prevent even foreseeable economic loss to the opposing party in a litigation.
Breach of Duty
There will be a breach of duty if the defendant failed to exercise that degree of care that would be exercised by a reasonable person in the similar circumstances.
The defendant’s breach of duty must be the cause of the plaintiff’s injuries or must have contributed to the plaintiff’s injuries. The test is whether “but for the defendant’s actions, i.e. breach of duty, would the plaintiff suffered the injury?” This is often referred to as the “but for” test. The plaintiff must also prove a causal link between the defendant’s wrongful conduct and the injury.
The liability of the defendant will be limited to the harms that the defendant could have foreseen. If the plaintiff’s injuries are beyond what could be reasonably foreseen, the defendant will not be liable. If the injury for which the plaintiff seeks compensation is not a foreseeable consequence, the defendant can avoid liability—even if the negligent act was a substantial factor or a but-for cause of the injury. Proximate cause is essentially a question of whether, as a matter of policy, legal responsibility for wrongful conduct will extend to the particular consequences that have in fact occurred. For example if a person damages the windshield of a car belonging to another person and the latter continues to drive the car with the broken windshield and then meets with an accident in which he is severely injured, the former will not be liable for the injuries.
The plaintiff must demonstrate that he or she has suffered harm that is legally recognized. The law generally recognizes harm to person (mental or physical) and to property. The breach of duty by the defendant along is not sufficient. For the negligence claim to succeed, the plaintiff must show that he or she suffered injury because there was a breach of duty by the defendant.