What Are Common Law Claims?
Common law claims are those that arise from common law — that is, ones that come from satisfying the elements of common law causes of action. These common law causes of action, in turn, come from judicial decisions that establish rules for civil claims. These judicial decisions have been made in all areas of law — from criminal charges to tort claims — so the resulting common law claims can be incredibly varied.
Common law claims are differentiated from statutory claims, which are those that are based on statutory law rather than common law. Statutory law is law passed down from legislatures, as opposed to law established by judicial decisions. Common law claims are technically codified like other claims, using the same four-part structure, but because they originate from judicial decisions, each common law claim requires judicial precedent.
Though the codification of all common law claims would be unwieldy, some generally relevant and widely referenced codifications do exist. For example, the elements for a negligence claim can be found at the Restatement (Second) of Torts § 281. In some jurisdictions, these elements may be codified within the jurisdiction’s statutes themselves. In others, the claim will be codified within the Restatement.
Common law claims, because they are not based on statutes, are relatively well-established. Many have remained static for years or even centuries. In limited circumstances, common law claims can be used creatively to meet novel challenges. For example, with regard to defamation claims, "commercial disparagement , " also known as trade libel, has been used to meet the challenge of making a defamation claim when no actual words were used that might damage a business’s reputation.
Common law claims are still important in today’s legal system. The challenge with these types of claims is that enough judicial precedent must exist for parties to even bring the claim. If the claim is novel, the core of the claim might be sunk the first time it is attempted. In spite of that, many areas of law are still accessed through common law claims. In the realm of tort law, for example, negligence, medical malpractice, fraud, misrepresentation and negligent infliction of emotional distress are all common law claims; there are no formal statutes that codify their elements.
The most frequent applications of common law claims today are in the area of contract violations. While many contracts are codified specifically in statutes, contract law is one of the areas where common law claims are most frequently used. A statement made by one party in a contract that was then violated may be used as basis for a common law claim for breach of contract.
Many civil claims are based on common law claims. Burglary, libel, invasion of privacy and wrongful death are just a few examples of civil claims that are based on common law causes of action. Both criminal law and even special claims like personal injury claims have elements that could qualify as common law claims. Common law claims are important in establishing a legal precedent and in understanding how a specific claim has been traditionally applied by courts.
Types of Common Law Claims
As common sense dictates, there are many different types of claims that can be brought in the United States courts. Below are some examples of different tort claims, which is the major category of common law claims, but there are many others.
Negligence – An automobile crash generally is a negligence claim. The harmed person must demonstrate that the other driver failed to act as a reasonable driver would have in the same situation and that failure caused the harm suffered. As another example, if you trip and fall on a broken stair in an apartment building, you may have a negligence claim against the landlord for the defective stair.
Defamation – If someone makes an untrue statement about you that causes excluding you from people in your community, you may have a defamation claim. An example might be if someone stated you have a contagious and deadly disease when they did not. However, if you are a public figure – for example, Johnny Depp – it would be much harder to prove an untrue defamation claim against someone.
Intentional Misrepresentation – If someone sells you a house and tells you the house has no problems, but later it turns out that there are major plumbing issues with the house, you may have an intentional misrepresentation claim. For this to be the case, the seller would need to have made the statement knowing that it was untrue.
How Are Common Law Claims Determined?
In common law jurisdictions, the path to resolution in a court of law is influenced by the common law system itself. At the outset of a case, a judge or court generally considers whether a party making a common law claim has specified the desired relief in the claim documents. For example, if a party seeks monetary damages, the claim must set forth the amount of the damages sought on its face. In civil cases, damages are not presumed, but rather must be established through evidence. The other party to the claim response will also consider putting forward a reason why the claim should be denied. In cases where the opposing party concurs with the claim, the matter may be settled after leverage is obtained. Evidence can vary significantly depending on the nature of the claim. A party claiming a breach of contract may put forward a copy of the contract itself as evidence that the other party violated the terms outlined within. Those with insurance claims who need examples of similar types of past claims may turn to insurance claim legislation or briefs from prior insurance claims as evidence. Judges in common law systems also consider precedents set in earlier cases. Through interpreting the law and applying it to individual cases, courts have the power to develop precedence, or a body of rules and principles. When deciding a claim that is similar in nature to other previous claims, judges typically try to base their decision on earlier decisions in order to maintain consistency. Under the doctrine of stare decisis, judges are required to follow the rules established in earlier similar cases. Case law is exceptionally important to the development of common law claims because it shapes the body of laws in common law systems.
Common Law vs. Statutory Law
Common law is a body of law that is based on the judicial decisions and proceedings in certain legal cases. This body of law develops over time as judges look back to earlier cases to determine the ruling in current cases in accordance with precedence. These precedences create a decision-making process in which future cases with similar facts will be decided in much the same way. This type of law differs from statutory law, which is body of law created by statute (i.e., legislation) instead of the judicial process. Because statutory laws are written and enacted by legislative bodies, this type of law can be amended more easily than common law.
While statutory and common law vary greatly in terms of how they are created, this does not mean that they are wholly independent of each other. Statutory law can greatly affect common law and vice versa. For instance, in federal law, many common law principles have been codified into statutory law. Courts will, of course, still look back to judicial decisions that were made before the statutory law was put in place, but current courts are more likely to reference enacted law, which was not always the case.
This is also vice versa—statutory law references common law. An example of this is when Congress enacts statutes that imply reference to common law court decisions. When Congress uses phrases like "common law in effect," "as defined at common law," and "under the common law," this implies that the judicial decisions in these areas are not absent of significance. In general, courts will look back to the background of a statute to find out why it was enacted in order to address issues with the meaning of the law.
How to File a Common Law Claim
Filing a common law claim generally begins with gathering evidence that your lead to the filing of a lawsuit for your injuries. Evidence can include, but is not limited to, photographs of the dangerous condition, the witnesses to the condition, the person who created the dangerous condition, medical records and bills, and, if applicable, wage loss documentation. It’s important to retain as much relevant evidence as possible in support of your common law claim against the property owner or occupier.
We advise you to consult with an attorney and to retain a lawyer to file the common law claim for you . This is particularly important when you are approaching the six month time limitation required to file a claim for slip and fall on private or municipal property.
The statute of limitations for the property you slipped and fell on will dictate the time to file a claim. Once the time limit passes, you may lose the ability to pursue a claim.
The act of filing a claim usually starts when you file a complaint in the appropriate court. The complaint should be served on the parties to the claim, along with a summons. A summons notifies the parties of the lawsuit and provides them with information as to when and where they need to respond. The summons also states the nature of the claims being brought by the injured party.
Common Law Claims Challenged
When litigating a common law claim, a plaintiff may be forced to overcome a number of challenging issues. One of the most common challenges is the opposing party’s ability to put up a strong defense to any allegations made against them. A defendant may make a motion to strike the plaintiff’s claim alleging the claim does not disclose a reasonable cause of action and shall not be allowed to be filed, and asking for the action to be dismissed. In determining the motion to strike, the Court shall accept any uncontradicted allegations of fact in the Statement of Claim as being true, unless it is otherwise amended or if the fact is one which must exist or must happen or must always be the same. If necessary, the parties may bring in any expert witnesses to determine what they believe the uncontradicted allegations of fact are and provide expert evidence as to their opinion. Another type of challenge in litigation is the burden of proof. The defendant bears the onus to show that they did not breach an implied or explicit term of an agreement or that a tort such as negligent misrepresentation did not occur. For example, a defendant of a negligent misrepresentation claim must prove that their false representation was not relied upon by the plaintiff and not the cause of loss. If any one or more of these elements were present, then the defendant is liable for damages. In situations where the plaintiff is relying on a civil cause of action wherein the basis or cause of action is a tort, the plaintiff must discharge the burden of proof that there was a prima facie case established. This is the case even if supposedly "easy to prove" torts such as negligence, defamation or negligent misrepresentation are present, and the plaintiff has to prove the existence of the tort and the resultant damage caused to the plaintiff.
Landmark Common Law Cases
A plethora of cases, both recent and historic, have contributed to the evolution of common law. The following is a selection of noteworthy common law cases from the last few decades through the present.
Riggs v. Palmer
In this 1889 case, the issue presented to the court involved the construction of a will. Upon his death, the decedent’s grandson was to receive a sizable inheritance, which was conditioned upon his not killing his grandfather. After learning of the will, the grandson killed the decedent. The question became what effect the grandson’s murder would have on his potential inheritance. The court determined that since the grandson’s act was against public policy, he could not benefit from his wrongful conduct, and he was prevented from inheriting under the will.
Vandever v. Nelson
This 1935 case addressed what constitutes commercial nonliability for fraud. In 1993, the plaintiff purchased a mobile home manufactured by the defendant. The plaintiff alleged that the defendant failed to honor its warranty coverage provision. The plaintiff’s complaint did not specify whether his claim was based on a tort or a breach of contract. The California Supreme Court held that commercial nonliability for fraud "is appropriate only where there is no contractual relationship between the parties and where the plaintiff’s injury is wholly collateral to any contractual relation between them." In other words, the court found that a fraud tort claim could only be asserted to recover damages if the damages are not the result of the breach of a contract.
Dell Publishing Co., Inc. v. Torres
In 1957, the plaintiff was found legally responsible for the death of the defendant’s husband after the plaintiff published his obituary. Since the plaintiff was found liable in the case, the defendant received the proceeds of a $15,000 life insurance policy on the life of her deceased husband. The policy included a clause that stated the policy would be void if any statements made on the application were fraudulent or incomplete material, to which the defendant stated that the deceased had requested that she not answer certain questions on the application. The court held that the insurance company cannot insure an individual without knowing the condition of the risk.
Strawn v. Farmers Insurance Co.
In this 2011 case, the plaintiffs filed a class action suit against the defendant insurance company after it became known that the defendant’s claims adjusters had been under-counting the actual number of hail strikes on the insured property, resulting in their insureds’ receiving less money to repair the damage. Though the plaintiffs’ policies contained an "appraisal clause," which created a required appraisal process for settling disputes regarding the value of insured property, the court held that the appraisal process did not bar the plaintiffs from filing actions for fraud and breach of contract.
Eisentrout v. GE Capital Consumer Lending
In this 2010 case, the plaintiff alleged fraud against the defendant financial institution after being charged fees on an installment plan prior to the due date. The plaintiff claimed that the defendant manipulated fees to be assessed at different times of the month, when the plaintiff was expecting to have consistent fees each period. The court held that there was evidence of a plausible fraud, and the plaintiff could move forward with his claim.
The Future of Common Law Claims
The future of common law claims is set to continue to challenge businesses from evolving contextual and best practice perspectives. As the business world progresses towards an even more globalised state, it is highly likely that common law principles and claims will face a greater attack from international jurisdictions looking to harmonise their approaches in line with the more traditional core aspects of the common law.
Moreover, increased digitalisation will pose and present unique challenges when determining the application of the common law to instances of electronic activity, and the appropriateness of implied terms in the age of artificial intelligence. As is demonstrated in our overview on "What loss? What damages?", businesses in the technology sector should not be complacent as to the need to remain well abreast of the common law , which continues to remain a central part of the purveyance of the application of contractual terms in unexpected areas of the modern economy, such as white collar technology. The burgeoning telecommunication and blockchain-based economies are set to test the limitations of common law principles, stretching their efficacy to more extreme and nuanced scenarios.
The applicability and purpose of the common law will surely undergo great pressures as courts are called upon to review instances of electronic activity and potentially as artificial intelligence takes over the role of decision-maker as to whether a legal breach has or should have occurred. This creates the pressing challenge of determining the applicability of implied terms that were never explicit consented to, especially as courts seek to define the scope of implied consent required on behalf of artificial intelligence.