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If I was Partially at Fault for my Pedestrian Accident, can I Still Pursue a Claim for my Injuries?
Yes. You may recover compensation for your injuries in Illinois even if your actions contributed to your pedestrian accident, but your damages will be reduced.
Pedestrians’ own actions contribute to their collisions with vehicles more than you might think and are part of the reason why accidents take place on streets, sidewalks, bike paths, and other public rights of way. Perhaps you entered the roadway without the walk signal or started to cross the street between two parked cars. Perhaps you jogged into a bike lane and cut off a bicyclist because you had headphones on and didn't hear his calls to move, or darted into the street without looking after leaving a bar or club late at night.
While these may have been poor decisions on your part, you may still be able to make a claim for your injuries against the party who hit you. You can still recover because the legal system allows people to be compensated for their injuries to the extent that others were responsible for them. For instance, in a pedestrian accident case you may have been distracted by your phone and stepped into the street without watching for traffic, but the driver who hit you may have been exceeding the speed limit or violating some other traffic law and couldn’t stop in time. In such cases, you would both share fault for the accident.
What is the Doctrine of Comparative Fault?
Illinois applies the doctrine of comparative fault to all personal injury and other tort cases. Comparative fault furthers the principle that a plaintiff's financial recovery should be reduced by the degree to which the plaintiff (injured person) contributed to their own damages. Negligence on the part of the plaintiff is one of the most common defenses that defendants in Illinois accident cases use. Under the comparative fault system, fault for an accident is apportioned between the plaintiff and defendant, and the plaintiff's percentage of fault is figured into whatever financial recovery they are entitled to. Under Illinois’ “modified” comparative fault law, the plaintiff—or pedestrian in this case—must be 50 percent or less at fault for their accident in order to recover anything at all. If they are deemed to be more than 50 percent responsible for causing it, they are barred from any recovery.
Note: this is different from the traditional common-law doctrine of contributory negligence, which holds that if the plaintiff’s own negligence contributed to the incident that injured him in any way at all, he cannot pursue a claim for damages. Currently, only four states and the District of Columbia still follow the doctrine of pure contributory negligence, which began falling out of favor with the legal system in the second half of the last century. The Illinois Supreme Court abolished the rule in a 1981 case (Alvis v. Ribar, 85 Ill. 2d 1) and replaced it with pure comparative fault, where the plaintiff could still recover but his compensation would be reduced by whatever degree his negligence contributed to the accident, even if it was more than 50 percent.
In 1986, the Illinois legislature amended the state civil procedure code to establish modified comparative fault, under which a plaintiff would be barred from any recovery if his fault amounted to more than 50 percent of the cause of his injury.
“In all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.”
(735 ILCS 5/2-1116)
“Contributory fault" is defined as “any fault on the part of the plaintiff (including but not limited to negligence, assumption of the risk, or willful and wanton misconduct) which is a proximate cause of the death, bodily injury to person, or physical damage to property for which recovery is sought” (735 ILCS 5/2-1116(b)).
Thus, plaintiffs in Illinois currently are not barred from pursuing damages if they were less than half responsible for the accident which caused their injuries.
How do I Calculate my Recovery if I Contributed to my Pedestrian Accident?
If you are injured in an accident with a motorist and have $100,000 in recoverable damages, but are determined to be 25 percent responsible for causing the accident, theoretically you should be able to recover $75,000 from the defendant motorist. However, calculating and apportioning the precise degree of responsibility and amount of damages is a complex, fact-intensive process subject to extraordinary scrutiny and speculation which is usually left to a judge or jury. But this is the thought process you need to engage in if you contributed to your Illinois pedestrian accident.
Still not Sure if You can Bring an Illinois Pedestrian Accident Case?
Rosenfeld Injury Lawyers LLC steadfastly supports and vigorously represents injured pedestrians across Illinois. We know how to get you the compensation you need even if you were partially to blame for your accident. Plus we work on contingency so you don't have to worry about any legal bills while we prepare your case. To learn how we can help you, contact our pedestrian accident attorneys to get your claim started today.