![]() Breach of duty looks at whether the party violated or breached, the applicable standard of care. Of all the factors considered foreseeability of the risk is the foremost and dominant consideration. In determining whether a duty exists, a court is to consider several interrelated factors such as: 1) the risk involved 2) the foreseeability of the risk 3) likelihood of injury and 4) factors 1-3 weighed against the social utility of the actor's conduct and the magnitude of the burden on the defendant. Duty is a question of law for the court to decide from facts surrounding the occurrence in question. As the Supreme Court has stated, "It is fundamental that the existence of a legally cognizable duty is a prerequisite to all tort liability." Graff v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d at 948. When no duty exists, no legal liability can arise because of negligence. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942, 948 (Tex. Duty is defined as the obligation to conform to a particular standard of conduct toward another, and is the threshold inquiry in a negligence cause of action. Elements of a Negligence cause of action are: (1) Duty owed by defendant to plaintiff (2) Breach of that duty (3) Proximate cause of the plaintiff's damages by defendant's breach and (4) Damages. ![]() See State Bar of Texas, Texas Pattern Jury Charges PJC 2.1 (2012).ĮLEMENTS. App.-Houston 1997, no pet.) "Ordinary care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. Sisters of Charity of the Incarnate Word v. To establish liability based on negligence, a plaintiff must prove the defendant did something an ordinarily prudent person exercising ordinary care would not have done under the same circumstances, or, that the defendant failed to do that which an ordinarily prudent person in the exercise of ordinary care would have done. ![]() 1957) see also State Bar of Texas, Texas Pattern Jury Charges PJC 2.1 (2012). Negligence is defined as the failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Negligence is by far the most common cause of action pled in lawsuits in Texas, as it has the best chance of invoking a Defendant's liability insurance. ![]()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |