A personal injury and accident lawyer explains the concept of “Common
Law” as it applies to personal injury lawsuits.
Our American legal system is built on two “types” or “systems”
of law: statutory law, law that is in writing and “on the books”
and the “common law” that is based on the past decisions of
various courts. In today’s post, an accident attorney explains the
differences between these types of law and how each may apply in personal
Statutory law refers to law that is 1) enacted by a governing body such as a state legislature
or the United States Congress, 2) is written down and usually is a part
of a larger body of law or “code,” and 3) is enforceable by
the state or its agencies and violators of statutory law may be subject
to a punishment ordered by a court. In general, statutory law states what
you cannot do. As an explanation of statutory law, consider the following example.
State law makes it a crime to embezzle money from your employer. This law
is written down in the state criminal code and is thus known to everyone,
including you. If you are caught embezzling from your employer’s
bank account, you can be tried in a criminal court and risk being sent
to a state prison, pay a fine, and/or make a restitution of the amount
that you stole.
Note that although a criminal court can order that you pay a fine and make
a restitution, it cannot order that you pay damages “over and above”
the amount that you embezzled. Most situations that fall outside the body
of statutory law, such as a personal injury or damage to property, is
usually dealt with according to common law.
In contrast to statutory law that defines what you
common law is founded on the principle of equity and seeks to restore one or more
parties to their states of well-being that existed prior to some injury.
Common law was developed in pre-industrial England to deal with common
situations such as disputes over contracts, land use, and accidental injuries.
Over time, the practice of using prior court decisions as guidelines in
rendering decisions on cases with similar facts evolved into what we now
call the common law.
In the common law, the court sees its duty to be the restoration of an
injured party to their condition prior to some injury or other loss. In
doing so, the court will apply previous decisions that were rendered by
other courts so long as the cases are similar. The practice of applying
the principles of previous court rulings is called
stare decisis (“let the decision stand”) and forms the foundation of the
Although the common law usually deals with non-criminal matters, there
are instances where the two types of law will overlap one another. As
an example, in every state it is a crime to operate a motor vehicle while
under the influence of alcohol. If an intoxicated driver causes an accident,
that driver will face criminal charges (statutory law) as well as running
the risk of being sued by an accident lawyer on behalf of a client for
any damages or injuries (common law) caused by the same accident. As another
example, in most states a bartender who serves alcohol to an obviously
intoxicated patron not only violates state law but can be sued in civil
court should that patron later cause an accident.
In summary, statutory law generally establishes what you cannot do and
sets the penalties that may be imposed should you violate such a law.
On the other hand, the common law deals with situations that are not generally
covered by written law and thus relies on historical tradition and the
decisions of other courts that have ruled on similar cases. Although statutory
and common law often overlap, only the common law allows for an injured
party to sue for damages that are the result of the carelessness or negligence
of another and it can be proven that such negligence was the direct cause
of an injury or some other loss.