Breach is the second element of a negligence claim and focuses on whether the defendant failed to meet the applicable standard of care.
Even if a duty exists, there is no liability unless the defendant’s conduct falls below the required standard.
What Is Breach in Negligence?
Breach asks whether the defendant’s conduct deviated from what a reasonable person would have done under similar circumstances.
This is a fact-specific inquiry that depends heavily on context.
The Reasonable Person Standard
Most breach questions apply the reasonable person standard. The question is whether the defendant acted as a reasonably prudent person would under the same conditions.
This standard is objective and does not change based on the defendant’s personal characteristics.
Common Ways Breach Is Tested
Breach is often tested through comparisons between what the defendant did and what they should have done.
Common bar exam scenarios include:
• Failure to act with reasonable care
• Ignoring known risks
• Acting in a way that creates unreasonable danger
Special Rules and Doctrines
Certain doctrines can help establish or analyze breach:
• Negligence per se (violation of a statute)
• Custom and industry standards
• Res ipsa loquitur (inference of negligence from the nature of the accident)
How Breach Is Tested on the Bar Exam
Breach is usually the most fact-intensive part of a negligence analysis.
On essays, you must compare the defendant’s conduct to the reasonable person standard. On multiple-choice questions, breach often turns on subtle factual distinctions.