What is "Common Law," and Why is it Important in Personal Injury Cases?

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 injury lawsuits.

Statutory Law

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.

Common Law

In contrast to statutory law that defines what you cannot do, 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 common law.

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.