How can we have Breach of Duty without Duty? Forum

[Bigsby]

Though I understand (or seem to) most topics in my Torts class, there are some few things that still elude me.

Mainly, my professor says we can have a finding for "Breach of Duty" WITHOUT finding "duty". Isn't that contradictory? How does one establish breach of duty, yet still find no duty?

I'm assuming he means that they find breach of duty but the duty isn't owed to the PLAINTIFF...but to someone else.

But then why would they even FIND breach of duty? why wouldn't they just start with "okay...is there a duty" and then if there isn't, throw out the suit and move on?

Thank you!
Bigsby

[soccerfreak]

http://en.wikipedia.org/wiki/Negligence_per_se

[Bigsby]

Yes, but my question is: with negligence per se...you may have violated a statute (this being breach of duty I'm assuming) but you may not have owed that duty to the plaintiff, right?

In other words, there is a statute to keep sheep in a pen to stop them from spreading disease, and they wash overboard because you didn't confine them. You breached your statutory duty...but there is no duty to the defendant to keep the sheep confined under this statute because that's not the purpose?

Why even go to breach of duty? Why not just look at duty first?

[ClubberLang]

I think what he means is you can breach a duty of care without owing a duty to the plaintiff.

For example, A negligently hits B's car, C suffers economic damages because he gets stuck in traffic. A did breach a duty, but owed no duty to the plaintiff.

As to part two of your question I'm not sure who "they" is, but on an exam you want to mention all elements of a negligence claim and see where it fails. All of the questions on your exam will be close calls so you need to analyze all the elements unless told otherwise.

[z0rk]

You should review intervening causes and palsgraf. What you are really asking about is a chain of events question.

Your example with the sheep is incomplete and lacking detail. Who is the defendant? what is their injury? How close to the original mode of incitement (the loss of the sheep) did their injury occur?

[BeenDidThat]

Though I understand (or seem to) most topics in my Torts class, there are some few things that still elude me.

Mainly, my professor says we can have a finding for "Breach of Duty" WITHOUT finding "duty". Isn't that contradictory? How does one establish breach of duty, yet still find no duty?

I'm assuming he means that they find breach of duty but the duty isn't owed to the PLAINTIFF...but to someone else.

But then why would they even FIND breach of duty? why wouldn't they just start with "okay...is there a duty" and then if there isn't, throw out the suit and move on?

Thank you!
Bigsby

That sounds like the kind of question you should ask your professor in office hours. What he said doesn't make sense without more explanation.