Do I Have Grounds to Pursue a Brain Injury Lawsuit?

If someone else acted negligently and injured you, such as by injuring your brain, then you could have a case against them. The key is that they acted wrongfully and that conduct caused your injuries. There are a lot of different kinds of cases you could bring in Illinois (such as negligence, medical malpractice, products liability, etc.) but this is the key to focus on. In the next sections, we will give you an overview of what you need to show in order to succeed on a brain injury claim in Illinois.

Whatever form of lawsuit you choose to pursue in Illinois, you need to show that someone actually and wrongfully injured you. Normally, this won’t be that hard especially if you suffered a brain injury. Yet, it is critical to note that in any personal injury suit, you need to establish that an actual harm has taken place.

This is a hard and fast rule in Illinois allowing only a few exceptions. However, once you do show that a tangible harm has occurred, you will be more likely to be able to pursue more intangible recoveries such as pain and suffering and others. The focus at first though should be on proving you suffered an explicit harm.

Even if you can illustrate that you suffered an actual harm, your Illinois brain injury claim will go nowhere if you cannot also show that the offender owed you a specific duty.

The term duty has a specific legal meaning. It means that the offender should have acted in a certain way towards you. Ostensibly, he or she didn’t which is why you got hurt. Also, it doesn’t have to be a mutually understood duty. For instance, you shouldn’t have to tell them not to hurt you with their cars or toys.

They should just know they have the duty to operate them safely with respect to all people passing by. If they don’t, and they hurt you, then they are said to have broken their duty. However, there are many kinds of duties. Some of them arise from law, contract, or custom. Therefore, it is important to review each of them if you get hurt and suffer a brain injury.

Outside of showing that you were injured and someone owed you a duty, you have to show two other things to prevail on your Illinois brain injury claim. 1) That the offender’s breach of duty caused your injury and 2) you suffered damages because of the injuries sustained. These four elements broadly make any brain injury claim. There might be more specific things you need to allege and prove to a jury depending upon your particular cause of action, but this is the overall framework you will be operating within should you choose to file suit. To review, here are the elements of your Illinois brain injury case:

1. The offender owed you a duty;

2. You were injured;

3. The offender breached that duty; and

4. The offender’s breach caused your injury and damages.

However, if your actions are more to blame for the incident than theirs, then your contributory negligence will bar any claim you might bring. Illinois contributory negligence laws allow plaintiffs to recover if they are 50% or less responsible for the accident. 735 ILCS 5/2-1107.1 gives the specific language:

“Jury instruction in tort actions. In all actions on account of bodily injury or death or physical damage to property based on negligence, or product liability based on any theory or doctrine, the court shall instruct the jury in writing, to the extent that it is true, that any award of compensatory damages or punitive damages will not be taxable under federal or State income tax law.

The court shall not inform or instruct the jury that the defendant shall be found not liable if the jury finds that the contributory fault of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought, but it shall be the duty of the court to deny recovery if the jury finds that the plaintiff’s contributory fault is more than 50% of the proximate cause of the injury or damage. ”