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  • What is a 'Breach Causing Harm in Fact' Under Tort Law?

    What is a ‘Breach Causing Harm in Fact’ Under Tort Law?

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Date Modified: September 9, 2023

A ‘breach causing harm, in fact,’ is a breach wherein someone is physically harmed. For example, if someone throws a football over a fence and intentionally tries to hit a car and does hit that car, and the car driver spins out of control and hits his head on the dashboard, that is a breach that caused harm. Negligence is the breach of the defendant’s duty of care to the plaintiff by unreasonable behavior. The reasonable person standard is the name given to this standard.

Further, the question of what behavior is unreasonable involves both law and fact. The legal requirement for care exists, but what is deemed acceptable in one circumstance might not be in another.

  • Video Transcript - What is a ‘Breach Causing Harm in Fact’ Under Tort Law?

    Video Transcript - What is a ‘Breach Causing Harm in Fact’ Under Tort Law?

    "0:00 What is a breach causing harm in fact?
    0:02 Under tort law a breach causing harm in
    0:06 fact is simply a breach wherein someone
    0:10 is actually physically harmed. For
    0:13 example, if someone throws a football
    0:15 over a fence, and they intentionally try
    0:18 to hit a car and they do hit that car.
    0:21 And the car driver spins out of control
    0:23 and hits his head on the dashboard that
    0:25 is in fact a breach that caused harm. [Music]"

A court will weigh the interest that the defendant must give up to avoid the danger against the likelihood that his action will cause harm to others, the severity of the harm, and other factors when deciding whether the conduct is unreasonable. It should be noted that the reasonable person’s standard of care is dependent on the relationship’s specifics and the plaintiff’s subjective traits.

What Is a Tort?

The law recognizes a “tort” as any form of wrongdoing that hurts another person for which courts impose liability. This concept encompasses a broad range of conduct, and the area of law known as torts is divided into many subfields.

Torts are acts or omissions that hurt another person in a way that results in a civil wrong that occurs as a liability. Additionally, torts can be divided into many categories depending on the mental state of the individual who commits the crime; for instance, negligence is a common cause of torts.

An “intentional tort” is one in which the one who commits the wrongdoing actively intends to carry it out. The parties that have been harmed use civil lawsuits to demand compensation for the harm caused by the tort. Redress is often offered in the form of money rather than incarceration.

Common Intentional Torts

Intentional torts are wrongful acts that someone plans, carries out, and is fully aware of their actions. You could notice some similarities, considering that many of these actions could also be considered crimes. Regardless of whether the murderer is found guilty, the victim’s family may still bring a wrongful death case against them. These are a few of the more common defenses in intentional torts.

Intentional Infliction of Emotional Distress

A plaintiff must demonstrate that another person participated in extreme and outrageous conduct with the intent of frightening someone else, which resulted in severe emotional distress or physical harm, in order to establish a claim of intentional infliction of emotional distress. It is quite challenging to prove these claims in court.


An assault is an intentional act or a threat of violence in the absence of a battery. Someone could be accused of assault if they point a pistol at you and make you feel in immediate danger. It could also include any harmful or offensive contact.


The word “battery,” which derives from the verb “to batter,” is the legal term for hitting someone or otherwise touching them in an offensive way (such as in the instance of sexual battery).

This covers a surprisingly wide range of actions, such as shooting a firearm and projectiles into another person’s body.

Remember that the term “battery” is also used to describe a criminal offense for similar behavior, which is often charged simultaneously with assault.


When someone intentionally spreads false information about another person, and the lie causes harm, this is called defamation. It involves both spoken (often slander) and written (typically libel) statements.


Trespassing can be done on real estate, chattel, or personal property. This is the illegal use of another person’s property, regardless of the circumstance.

The Standard Definition for a Reasonable Person

The reasonable person standard is the degree of care and caution that a regular person would exercise in a certain situation. Essentially, the situation determines how to apply the reasonable apprehension criteria.

It’s a made-up legal criterion that’s used to assess how each accident party behaved. The fact-finder, which is typically the jury, examines each person’s actions to determine if they were at least as careful as a reasonable person would have been.

A victim is entitled to compensation for an injury suffered. This includes medical costs, pain, and suffering only if it can be proven that the defendant’s act was negligent and that negligence led to the plaintiff’s injury.

Torts from Other Bases of Liability: Differentiating

Crimes, which are wrongs committed against the state or society as a whole, can be distinguished from torts. To uphold public justice, the main goal of tort law, which deals with private wrongs, is to make amends for the victim rather than punish the offender.

Some behaviors may give rise to both civil and criminal liability. As an example, severe negligence that puts other people’s lives in danger can be both a tort and a criminal offense. Certain behaviors, such as the battery, are punishable both under criminal law and tort law. In that situation, criminal law would give the defendant rehabilitation while also benefiting society by reforming the defendant who was assaulted. In contrast, tort law would ideally offer the plaintiff a monetary remedy, such as a personal injury claim.

Additionally, different from contract law is tort law. Contrary to popular belief, if a defendant breached a valid contract, it would not be regarded as a tortious act, even when the defendant may have a compelling case for breach under contract law.

Can Inaction be Unreasonable Behavior?

In some circumstances, standing still might be considered unreasonable behavior. This is valid in situations where there is a special connection or when one person puts the other at risk of harm. An individual has an affirmative duty to act in such circumstances. Essentially, a reasonable level of care is breached when failing to act occurs.

What Is Careless and Wanton Conduct?

Reckless behavior shows utter disregard for the potential adverse effects of one’s actions. A defendant often needs to understand the kind and extent of any potential harm that could result from their actions. Although it may not necessarily indicate evil intentions, it severely lacks due diligence. Such behavior is negligent and falls short of the duty of care owed to other people. In certain legal systems, irresponsible behavior is referred to as aggravated negligence. The law in such cases will permit a plaintiff to receive punitive damages in addition to actual damages.

What Is Res Ipsa Loquitur?

There are two circumstances in which a defendant may be found responsible without proof of unreasonable behavior or when the conduct’s unreasonableness can be inferred from the circumstances.

Res Ipsa Loquitur asserts that, in some circumstances, the accident’s or circumstance’s very nature shows that the defendant’s actions were negligent. If someone in the defendant’s position had not been careless, this kind of harm would not have happened. Therefore, it is unnecessary to show what a reasonable person would or ought to have done in the circumstance.

Elements of a Negligence Lawsuit

A plaintiff must prove each of the “elements” in order to win a negligence claim. Damages are one of the factors, which means that, in order to hold the defendant accountable, the plaintiff had to suffer loss or harm.

Even if you can prove that the defendant was at fault, your negligence claim case might not succeed if the injury that resulted from their conduct did not affect or harm you.

Juries in civil courts are taught to evaluate the testimony, evidence, and facts to determine if each of the following elements was met:

  • Duty
  • Breach of Duty
  • Cause in Fact
  • Actual and Proximate Cause
  • Damages.

These five elements of a negligence case are explained in greater detail below.

1. Duty of Care

Whether the defendant owed the plaintiff a duty affects whether a case of negligence is successful or unsuccessful.

When the law acknowledges a connection between the defendant and the plaintiff and calls on the defendant to behave in a specific way, a duty is created.

A judge ordinarily determines whether a defendant owed a duty of care to a plaintiff and will usually find that a legal duty exists if a reasonable person would find that it happens under similar circumstances.

2. Breach of Duty of Care

Essentially, the mere assertion that someone owed a duty to a party is not sufficient to establish a duty. The personal injury attorney must also prove the negligent party’s breach of their duty to the other person. A defendant violates this obligation by failing to take reasonable precautions. Essentially, a jury will decide, as a matter of fact, whether a defendant violated a duty of care.

3. Cause in Fact of the Injury

According to the standard legal requirements in negligence proceedings, the plaintiff must prove that the defendant’s activities were the real reason for their injury. This is commonly referred to as “but-for” causation, which means that the plaintiff’s injury would not have happened but for the defendant’s actions.

4. Proximate Cause of Harmful or Offensive Contact

In a negligence case, proximate cause refers to the extent of the defendant’s liability. A defendant in a negligence case is only responsible for those harms that the defendant could have foreseen through their actions.

The plaintiff cannot prove that the defendant’s actions were the direct cause of the plaintiff’s damages if the defendant has caused damages that are greater than the risks that the defendant might have foreseen.

5. Harm and Damages

A plaintiff in a negligence lawsuit must prove a legally recognized harm, which is usually expressed as bodily harm to a person or to property, such as a car in a collision. It is not enough that the defendant failed to exercise reasonable care.

The failure to exercise reasonable care in such a way will result in the injured party claiming damages for gross negligence, bodily injury, punitive damages, or compensatory damages if it is brought to court in the required time frame.

Contact Ehline Law for a Civil Lawsuit and Personal Injury Case

Even if you’re certain that a negligence case has all the necessary elements, it still takes a skilled attorney to build a strong case and eventually succeed.

A competent lawyer knows how to assess the facts that will prove or disprove your claim, fairly calculate damages for remedies such as mental anguish and medical expenses, and negotiate a settlement. Contact Ehline Law Firm for personal injury lawyers to get going right away.

Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients.
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Michael Ehline

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