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In my previous post titled
Who Can Bring a Wrongful Death Lawsuit Under Georgia Law?, I talked about
Georgia’s wrongful death statute, which provides that when someone commits a tort that kills someone else,
the family of the person who was killed can file a lawsuit to recover
damages. See
O.C.G.A. § 51-4-1, et seq. As a lawyer, I use that statute when I bring a
Georgia wrongful death lawsuit on a family’s behalf.

I mentioned in my previous post that the Georgia wrongful death statute
is considered to be “in derogation of common law.” That phrase
is so strange that I thought that as an Atlanta, Georgia, legal blogger,
I would devote one of my entries to explaining what on earth the “common
law” is, and why something would be “in derogation of” it.

My Black’s Law Dictionary defines the common law as “those
principles and rules of action. . . which derive their authority solely
from usages and customs of immemorial antiquity, or from the judgments
and decrees of the courts recognizing, affirming, and enforcing such usages
and customs, . . . particularly the ancient, unwritten law of England.”
One California case drew a bright line, saying that the common law was
any law “of England and the American colonies before the American
People v. Rehman, 253 Ca.2d 119, 61 Ca. Rptr. 65, 85.

In other words, the common law is the law that arose after years and years
of courts making decisions. The courts were acknowledged to have the inherent
authority to define what the law was, and over time a consensus and clear
rules emerged from the courts’ decisions.

Judge Learned Hand, a brilliant and eloquent jurist who sat on the United
States Second Circuit Court of Appeals from 1924 to 1951, likened the
common law to a coral reef that builds up slowly over time:

(Common law) stands as a monument slowly raised, like a coral reef, from
the minute accretions of past individuals, of whom each built upon the
relics which his predecessors left, and in his turn left a foundation
upon which his successors might work.

(Judge Hand’s picture is at the front of this blog.) Since the courts
were the ones defining and creating the “common law”, they
reasoned that could be flexible when they interpreted it. If a new situation
arose, and the common law did not really fit the situation, the common
law could be adjusted.

When the legislature passes a statute that creates new law, however, the
courts find the statute is “in derogation of the common law.”
To say that the law is “new” is really a misnomer. Take Georgia’s
wrongful death statute, for instance. The first statutory cause of action
for wrongful death, Lord Campbell’s Act, was passed in 1846 by the
British Parliament. “In 1850, Georgia patterned its first wrongful
death statute after Lord Campbell’s Act. In 1933, the Georgia legislature
enacted Code Ann. § 105-1309, which created and established a new
property cause of action in favor of the next of kin of the deceased,
which had not previously existed.” Stewart v. Bourn, 250 Ga. App.
755, 756-757 (Ga. Ct. App. 2001). Clearly, then, there is nothing particularly
“new” about Georgia’s wrongful death statute!

The courts had been a part of creating the common law, and so they felt
they could adjust it. Since the “new” statutory law was “in
derogation of” the traditional law, the courts concluded that they
had to strictly interpret what the legislature wrote, enforcing that law
exactly as written.


Lee’s peers have named her a Georgia SuperLawyer every year for two decades.