What is a Breach of DutyWhat is a breach of duty? What does it refer to? Is it important?
According to Blacks Law Dictionary, in a general sense, a breach of duty is any violation or omission of a legal or moral duty. In a more specific sense, a breach of duty is the neglect or failure to fulfill in a just and proper manner the duties of an office or fiduciary employment.
Fiduciary is a term that is derived from the Roman law. A fiduciary was a person that held the character of a trustee, or a character that was analogous to that of a trustee. This was in reference to the trust and confidence involved in being a fiduciary, and the scrupulous good faith and candor which being a fiduciary requires.
It follows that fiduciary employment refers to a type of employment that involves the nature of a trust. Fiduciary employment has the characteristics of a trust; or that relates to or is founded upon a trust or confidence.
Put simply, a breach of duty is a failure to live up to a required standard of care. A breach of duty is knowingly exposing someone else to harm.
However, a breach of duty is also when someone does not realize that they are exposing another to harm. The idea is that they should have recognized the probability of harm that any reasonable person would have recognized
English common law
The concept of a breach of duty goes back to English common law. However, the legal idea of a breach of duty goes back for several centuries. In order to have a breach of duty, there has to be a reasonable person who has a duty of care toward another.
This means that a person who is accused of a breach of duty has to be of at least average experience and intelligence. This person must also be carrying out a task that would be reasonably seen as being possibly dangerous to the well-being or safety of another.
For a person to be considered guilty of a breach of duty by the court, there are several questions that the court asks. Some of these are:
Did the person (defendant) have a duty toward the person who was harmed (plaintiff)? If this was true, was it a duty of reasonable care, or was this duty based upon premises liability, professional liability or some other kind of relationship between the defendant and the plaintiff?
What kind of alternatives were available that may have prevented the harm? This could refer to alternative designs, materials, actions, locations or other items. This is determined by the specific facts of each individual case.
Was the burden of using safer alternatives much heavier than the risk that was involved in not using them?
Did the defendant use the same amount of reasonable care that another person would have used to prevent harm?
Risk of harm
Did the defendant foresee the risk of harm to the plaintiff, or should the defendant have reasonably foreseen the risk of harm to the plaintiff?
Have you been the victim of a breach of duty? Did you suffer significant damages and/or injuries as a result of a breach of duty? If so, you would be wise to contact a personal injury attorney.
Article written by James Shugart
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