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Jonathan Rosenfeld

October 15, 2021

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All personal injury cases will use the same defined legal terms when it comes to the test that is used to determine whether someone else should be financially responsible for your injuries.

It is the same four-part test that is used every single time. For every personal injury case, you will hear the term “duty of care” used. When someone breaches this duty, and it causes your injury, the defendant can be made to pay for your injuries.

How Does Personal Injury Law Treat the Duty of Care?

The first part of every negligence case is that someone owed a duty of care to the plaintiff. This is one of the easier parts of your lawsuit to prove. You do not need to know someone to owe them a duty of care.

One assumes this relationship often just by being in the vicinity of someone else. Once you can show that the duty of care existed, you can move onto the next part of your case.

What is the Duty of Care

As the injured party, the plaintiff has the burden of establishing that the defendant breached its duty of care.

The Legal Definition of the Duty of Care

The duty of care involves the appropriate way to act towards others. You must exercise a reasonable amount of attention and watchfulness that a reasonable person would use under the circumstances.

Personal injury law is all about the “reasonable person.” They are the basis for every decision in litigation about negligence.

Ordinary Care

Reasonable care is the same thing as ordinary care. This is the care a reasonably careful person would use under circumstances similar to those shown by the evidence. Fugate v. Sears, Roebuck & Co., 12 Ill.App.3d 656, 299 N.E.2d 108 (1st Dist.1973).

Ordinary care also depends on what the plaintiff is doing at the time of the accident. Even if the defendant failed to use ordinary care, they may not be legally responsible if the plaintiff was more than 50% responsible for their own injuries.

How to Prove that the Duty of Care Existed

The duty care will arise based on the relationship between the plaintiff and the defendant. There must be some sort of connection between the two that obligates one to exercise reasonable care.

This is established through evidence, although it is not that hard to do. However, the failure to show the duty of care may mean the end of your claim.

Here are some examples of when the duty falls upon a defendant:

  • One example is any driver owes a duty to exercise reasonable care to all other drivers on the road and their passengers
  • A doctor that treats a patient owes them a duty of reasonable care
  • A transportation company that moves passengers owes them a duty of care. When they are considered a common carrier, the duty is heightened even further.
  • A business owner owes this duty to customers invited into the store to refrain from being negligent in possible slip and fall cases
  • A landlord or property owner must take reasonable care for invitees on the property. This includes protecting them against hazards and even crime
  • Nursing homes owe a duty of care to the residents that they care for

One does not even need to voluntarily assume the duty to another party. It may be imposed on them by the court just by being in a certain place at a certain time.

Personal injury litigation features many people who had no idea that they could possibly be a defendant in a case. However, the duty of care does not have to be foreseeable. It can arise in an instant.

Breaching the Duty of Care

As a lawyer, we are often asked about the circumstances that would make someone else liable for your injuries. An attorney will need to prove that someone breached this duty as part of determining liability for any accident.

We often learn facts on the initial free consultation, when someone asks us whether they may be entitled to financial compensation for their injuries.

The challenge for us is to gather the evidence that takes the case from the plaintiff’s arguments to the defendant’s liability.

When Is the Duty of Care Breached?

Courts are often faced with the question of deciding liability in a case. We are often asked whether someone else did something wrong when you have been injured.

As an attorney, we usually answer such questions asked by a client with the magic words of “it depends.” This is because it all depends on the facts of your case.

What may be a breach in one case could be acceptable in another. Everything comes down to the legal evidence that you can present.

Unreasonable Conduct Under the Circumstances

What you must establish and develop is that someone else acted unreasonably under the circumstances to be in position to receive compensation. This all depends on what they did and what the circumstances were. Fault is a changing concept based on exactly what happened.

For example, driving 35 miles per hour may be considered reasonable under the circumstances. However, there are a number of occasions where it may be unreasonable and would be considered negligent.

If the speed limit was 25 miles per hour, driving 35 would be speeding, and it would be a breach of the duty of care.

If it was snowing or icy outside, one would expect that a reasonable driver would go slower, and driving 35 miles per hour could be considered negligent in the jury’s analysis.

Unreasonable Conduct in Other Cases

Clients also come to us with medical malpractice cases. This is where a law firm often faces the greatest challenge in trying to prove a breach of the duty.

The key is that a doctor needs to act reasonably under the circumstances when they are providing medical services. Otherwise, they would need to pay for the victim’s damages and costs.

Here, the jury will look at a number of factors. Your lawyer would need to take them back to the doctor’s office or operating room and analyze every decision that the medical professional or practice made or things that they did not do.

Usually, your lawyer would be working with medical experts to recreate the circumstances faced by the doctor to see if they acted reasonably. They are comparing the care and treatment to what a reasonable doctor would have done. If the lawyer can show unreasonable conduct, their client may be able to recover damages.

Breach of Duty in Premises Liability Cases

One of the more common types of negligence cases in a premises liability claim. This is where someone who is on the property of another suffers an injury on the site.

This could be a lawsuit against:

  • landlord
  • store owner
  • restaurant or other establishment
  • city of local government
  • University

When you are on the property of another, they assume a relationship where they owe you a duty of care. This means that they take steps to ensure your safety when you are on their property. While they cannot prevent every single risk, they must take reasonable care.

Slip and Fall Cases

A breach of duty is relative to the type of case. One major area of personal injury law where we see quite a few cases is slip and fall.

Here, there is the same duty to use reasonable care, but it means something a little different in slip and fall cases.

In a slip and fall, the property owner is not obligated to prevent every single accident on their property.

However, their obligations are as follows:

  • They must warn of all known dangers on their property that are not open and obvious
  • They must fix any dangerous conditions that they themselves created
  • They must remedy dangerous conditions that they learn of within a reasonable amount of time

The classic example of a slip and fall is a spill in the store aisle or a piece of equipment left out in the way. The store owner must clean up the spill within a reasonable amount of time after it happens.

At a certain point, they would be charged with knowledge of the spill, whether they knew about it or not.

Foreseeability Is a Requirement

In order to be a breach of duty, one must foresee that their actions could cause harm to someone else.

In other words, they should have reasonably assumed that an injury would be predictable based on what they did.

The possibility of injury could be so remote based on a defendant’s actions that it may not be fair to hold them legally responsible. This is often an issue in premises liability cases.

Proving a Breach of Duty

In any civil case, it is not what you know that is important but what you can prove happened.

As a result, you will need evidence that the defendant breached the duty of care. This requires an experienced lawyer to gather the evidence that you need to present to the insurance company or the jury.

This is not something that the average person has experienced doing. Responsible parties may have some evidence under their control, and they will not make it easy for you to get.

The Evidence You Need to Show Breach of Duty of Care

Here is some of what your attorney may use to show that someone else breached the duty of care in your case:

  • Pictures of the scene of the accident where you were injured
  • Witness testimony from someone who saw what the defendant did
  • Surveillance camera footage that could show what happened
  • Expert witness testimony that could recreate the accident
  • Documentary evidence such as maintenance logs
  • Employment records for workers who may have committed negligence

Illinois Cases Where the Duty of Care Was Breached

Here are some examples of cases in Illinois where juries decided that one party breached the duty of care. This should give you an idea of some of the fact patterns where others may be liable for the harm that they have caused.

Camacho-Lunded v. Schultz Sav-O Stores, Inc. (1996) – The plaintiff won a jury verdict in a slip and fall case when she slipped on strawberries on the floor at the defendant’s grocery store. The specific actions that were found to be a breach of duty was the fact that the grocery store did not properly arrange the strawberries, nor did it put down a mat on the floor in the produce aisle.

Archer v. Rosewood Care Center (2007) – A nursing home admitted a patient, knowing that she was a severe fall risk after her stroke. They breached the duty of care by failing to monitor the resident, supervise her and transfer her. She died after she suffered multiple falls that resulted in head trauma. A nursing home owes a duty of care to all of its residents in both providing health care and supervising their activities of daily life.

Crave v. Reliable Transportation Specialist, Inc. (2001) – A trucking company owes a duty of care to another person who is driving on the road or their passenger. Here, the truck driver (and by extension the company) breached the duty of care and was negligent when the truck crossed the centerline of the roadway and struck and killed another driver. The truck driver was speeding at the time of the accident.

Steele v. Provena Hospital (2010) – An emergency room physician was found to have breached the duty of care and was negligent when he failed to diagnose the fact that a rash on the patient’s body was an infection that required a certain course of treatment. Instead, he diagnosed her with a rash and sent her home, and she died of the infection. Following the duty of care would have meant that the doctor consulted with an infectious disease specialist to determine the true cause of the rash.

Illinois Personal Injury Lawyers

It takes time to search for the right personal injury lawyer when you are filing a claim. The law firm of Rosenfeld Injury Lawyers has experienced attorneys with a track record of success for our clients.

We will research and investigate your case and help you come up with the best legal strategy to be in position for financial compensation. You pay us nothing for our service unless we are able to help you recover financially.

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