Common Law

In its purest form, “fault” for causing an accident is either created by statute or defined by common law. Common law recognizes four basic levels of fault: negligence, recklessness or wanton conduct, intentional misconduct, and strict liability (irrespective of fault).

Negligence generally means careless or inadvertent conduct that results in harm or damage. It is a recurring factor in an aggregate majority of automobile accidents. It encompasses both active and passive forms of fault. That is to say, failing or omitting to do something (e.g., yielding a right-of-way) may result in liability just as much as actively doing something wrong (e.g., running a red light). Reckless or wanton conduct generally refers to a willful disregard for whether harm may result and/or a disregard for the safety and welfare of others. Strict liability may be imposed, even in the absence of fault, for accidents involving certain defective products or extra hazardous activities (such as the transporting of explosive chemicals).

Under common law, individuals who have caused an automobile accident have committed a “tort,” a private wrong against another, not founded in “contract,” and generally not constituting a crime. Those who have committed torts are referred to as “tortfeasors” under the law. Many automobile insurance policies continue to use the word “tortfeasor” to refer to people who are at least partly “at fault” or responsible for an accident.

There is rarely a question of fault when the tortfeasor has engaged in intentional or reckless misconduct, such as drunk driving. But when it comes to something less than intentional misconduct, e.g., general negligence, establishing fault for an automobile accident becomes more complex. Moreover, it is often the case that more than one driver or person is negligent and/or has played a role (even inadvertently) in the resulting accident. When there are multiple tortfeasors involved in an accident, state law dictates who must pay for both damage to property and injuries to the occupants of vehicles.


Inside Common Law