How Torts Lead to Personal Injury Lawsuits – The Duty Element


The following article is the third in a series about personal injury law.  You can read the first article here, which explains where laws come from.  You can read the second article here, which explains what a tort is.  This article will focus on explaining the first of four elements a plaintiff must prove in a negligence case – duty.  It is written for people who do not have legal training.  As a result, it should not be relied upon for complete accuracy or as legal advice. 

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    The Duty Element

    The simplest definition of personal injury is an injury to a person’s body or mind. Once such an injury has occurred, the injured person has the right to file a legal claim against the tortfeasor or wrongdoer.  For a claim to be successful, the injured person must prove their claim is valid.  To do so, he or she must establish the elements of a prima facie case.  “Prima facie” is just a fancy Latin way of saying, “proven on its face.”  The tort of negligence has four well-defined elements:

    1. Duty
    2. Breach of Duty
    3. Causation
    4. Damages

    Duty: The First Element of Negligence

    Every person has a duty to act in such a way that does not cause harm to another.  This is a core principle of modern society and the civil justice system.

    Negligence torts come in two forms.  The first is through affirmative acts; the person’s actions directly led to harm or injury of another.  The other is an act of omission, meaning a person failed to act in a way they should have, which resulted in harm to another.

    The legal terminology can be confusing.  The easiest way to understand these differences in acts of commission and omission is through examples.

    Driving faster than the speed limit is an example of an affirmative act of negligence.  A repair shop’s failure to remove a worn-out tire resulting in a blow out and causing serious harm to another is an example of an act of omission. Defendants can be held responsible for both affirmative acts and acts of omissions.

    In a negligence tort action, the first element that must be proven is duty.  Was the harm caused to the injured person the responsibility of the defendant?  Did the defendant owe a duty to the plaintiff?  This is what the court must decide.  To determine duty, a court will first determine whether the defendant owed a duty of care to the plaintiff.  Secondly, it will determine the scope of that duty. If the defendant’s unreasonable action creates a risk of injury to the plaintiff, then the defendant owes the plaintiff the duty to exercise due care.


    Duty Example

    John is exiting Wal-Mart, pushing a full grocery cart. While pushing the cart, he receives a text message.  He becomes preoccupied with checking the text message.  As he is focusing on his cell phone, he pushes his cart into Mary, an elderly lady.  She is knocked down and dies.

    Did John have a duty or obligation to act reasonably and pay attention to where he was going? From what is known of this simple fact scenario, the answer is yes.

    The second legal question for the court is to define the scope of the duty. Clearly, Mary was within the scope of John’s duty to use reasonable care. She was in the same parking lot as John and close enough to him that his actions or inactions would have an impact on her personal safety. John, however, does not owe this legal duty to all people everywhere. Under the current facts, he would not owe a duty to push his cart safely to those people in a parking lot of a competing grocery store ten miles away, for example.



    What if John stopped in the parking lot and used both hands to operate his cell phone to return the text message? While focused on his text message, the shopping cart rolled away because the grocery store is in a hilly area.

    What if the cart ended up rolling down to the bottom of the hill and into the street striking a pedestrian crossing the street, which caused a personal injury to the pedestrian?

    What if a passing car strikes the cart, sending it 1,000 feet away, where it then strikes and kills a person?

    What if the person that is ultimately killed by the cart was on his or her cell phone while crossing the roadway illegally and could have easily seen and avoided the cart?

    Even the simplest scenario can get complicated quickly. It’s important to have as many facts as possible to help the court make these determinations.  This is where a good personal injury attorney comes in to help.

    The full circumstances must always be considered in determining duty and how far that duty extends.  A court will carefully review a long list of factors to make this determination.  Some of these factors include answers to these types of questions:

    • Could general harm be predicted in the circumstance?
    • Did the predictable harm occur?
    • What was the relationship between the parties?
    • What was the defendant doing at the time of the incident?
    • Was the defendant able to exercise due care?

    Courts must also consider numerous other factors:

    • Expectations of the parties and of society;
    • The goal of preventing future injuries by deterring similar conduct in the future;
    • Decisions by other courts in similar circumstances;
    • Logic and science;
    • Morality and justice;
    • Community values;
    • Desire for a reliable, predictable and consistent body of law; and
    • Economic factors.

    There are numerous other complicated legal considerations courts study before making determinations of duty that are beyond the scope of this simple article.  The list above is merely a starting point.  An experienced personal injury attorney should explain these factors in such a way that their clients can understand the strengths and weaknesses of their case.


    Failure to Act

    Defendants may also be held liable based upon a duty of failing to act. John’s act in pushing the grocery cart into Mary was clearly an affirmative act. The allegation that a defendant failed to act is much more difficult to prove.

    Returning to the supermarket car incident with John, let’s add some nearby bystanders into the scenario. Prior to the cart collision, Mark is walking past with his girlfriend Sarah.  Mark witnesses the cart rolling toward Mary.  Mark could have prevented the accident if he yelled out for Mary to “Watch out!” Instead, Mark just laughs and watches.

    If Mary’s family sues John for an act of negligence and Mark for his negligence in failing to act, would a court hold Mark legally responsible? Probably not.

    While Mark probably had a moral obligation to take action, he had no legal obligation or duty to act and did not owe Mary a duty to use reasonable care.

    However, had Mary asked Mark to look out and warn her of runaway carts, and Mark agreed to do so, the conclusion would be different.  In this case, Mark would be responsible because he agreed to assume the duty of helping Mary.

    This concludes our brief discussion on duty.  If you would like to receive future educational articles in your inbox, enter your email here:

      If you are interested in taking a deep dive into this topic, I highly recommend this Boston University Law Review Article.  Once a duty exists, the plaintiff must show that the defendant breached it. Breach is the second element of negligence and the subject of our next article in this series.


      Breach - the Second Element of a Tort
      Click here to read the next article in this series.



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