Super Lawyers
Illinois State Bar Association
Justia Lawyer Rating
Million Dollar Advocates Forum
Avvo Rating
Rosenfeld Injury Lawyers BBB Business Review

How Will Comparative Fault Impact My Pedestrian Accident Case?

I Was Told That I Was Partially At Fault For My Accident. Can I Still Pursue A Claim For My Injuries?When you are injured in an accident, it is important to understand how comparative fault will impact your case. Of course, there's no need to worry about this if the other party was 100% at fault for your injuries, but what happens when you share some of the liability?

What if you were partially or even entirely responsible for the accident that caused your injuries? In those cases, comparative (or contributory) negligence laws may apply and reduce damages accordingly.

At Rosenfeld Injury Lawyers LLC, our experienced personal injury attorneys can help protect your rights by helping prove whether or not comparative fault applies in your case and, if so, how much blame should be placed on both parties involved in this collision.

Our pedestrian accident attorneys will fight hard to recover compensation from all responsible parties - including any other drivers who may have been negligent in causing this accident and government entities like state and local governments who failed to maintain the road where this incident occurred.

Call us today toll-free at (888) 424-5757 to schedule a free consultation to explore your legal options. We keep the confidential or sensitive data you share with our law firm private throughout our attorney-client relationship.

Comparative Negligence

Comparative negligence, also known as "comparative fault" and "contributory negligence," are legal terms meaning the same thing. It refers to the relative responsibility assigned to each party in a lawsuit.

In a personal injury case, plaintiffs who are found to be partially to blame for their accident receive reduced financial compensation as a result of their comparative negligence.

Comparative fault is not limited to personal injury cases. For example, if you are involved in a car accident that is not your fault, you could still be held responsible if the other driver is not found to have contributed to the accident.

If you are injured in an accident with another negligent party, it is important to understand how comparative fault may impact your case.

Comparative Fault

Some elements remain the same in a comparative fault state in a contributory negligence state that does not bar recovery.

First, what is contributory negligence? Contributory negligence is a complete defense to a lawsuit. However, if contributory negligence appears, the injured plaintiff's damages would be reduced by the percentage of fault attributed towards them.

What is comparative fault? Comparative fault is not a complete defense to a lawsuit like contributory negligence. However, if the court finds comparative fault applicable, the injured party damages are reduced by the percentage of fault attributed towards them.

First Element for Comparative Fault in an Accident: Proximate Cause

Comparative fault in an accident case would be contributory negligence. The proximate cause of the accident would have to be the driver's carelessness.

Second Element for Comparative Fault in an Accident: The Injured Plaintiff's Carelessness

The second element would be the same as contributory negligence in that the injured person would have to be negligent. Under contributory negligence, the pedestrian's contributory negligence must equal or exceed the driver's fault to not recover anything.

Under comparative fault, the pedestrian's carelessness would have to equal or exceed the percentage of responsibility attributed towards them.

Third Element for Comparative Fault in an Accident: The Injured Pedestrian's Damages

The third element is the same under both contributory negligence and comparative fault in that the injured pedestrian's damages must be able to be compensated.

The value of these damages is typically determined by the injured plaintiff's economic and non-economic losses, known as general damages. These would typically be medical bills, lost wages, and pain/suffering.

The comparative fault does not change the outcome in several accident cases. The main differences between contributory negligence and comparative fault in a crash case would be:

  • Under contributory negligence, the pedestrian cannot recover anything if they are found to be at all negligent. Under comparative fault, the pedestrian's damages would be reduced by the percentage of negligence attributed to them.
  • Under contributory negligence, the pedestrian must have a percentage of fault equal to or greater than the driver not to recover anything.

Under comparative fault, the pedestrian must have a percentage of negligence equal to or greater than the responsibility attributed to them.

In a personal injury case, an injured person can recover if their damages are more significant than their carelessness percentage.

The percent at fault for your crash is called comparative fault. The comparative fault legal doctrine is one of the most confusing concepts in the entire field of personal injury law.

Therefore, it is crucial to understand how a defense attorney might use comparative fault in an accident case. Our attorneys can offer you a free consultation for clarity.

Personal Injury Lawsuit

When a pedestrian is struck by a car, they can pursue financial compensation in a personal injury lawsuit. A personal injury claim is brought against the at-fault driver to recover medical expenses, wage loss, pain, and suffering.

A pedestrian can file a lawsuit against the driver's insurer for any property damage.

However, since the pedestrian was also negligent, the insurer can reduce its liability by arguing that some faults belonged to the injured party. It is known as comparative fault.

A personal injury claim is a civil case filed against the at-fault party in an incident. A personal injury claim typically results in compensation through the court system.

Our law office represents individuals injured in a crash. For example, the deceased's family members can pursue a wrongful death claim against the responsible party when a pedestrian is killed through another's negligence.

Personal Injury Case

Complex personal injury cases are high in monetary value. Therefore, if you are filing a personal injury claim, there are some things you need to consider, including who or what is at fault for the collision.

Then, you must prove that the other person was negligent in some way and caused your injuries.

If you are filing a personal injury case against the driver of the car, then you must prove that they were negligent and caused your injuries.

Suppose you are filing a claim against the city because the street is in bad condition and caused your crash. You must prove that the city was negligent in some way and caused your injuries.

If they were not negligent, you could not collect damages. It is where it gets tricky when filing a case against the car driver for your injuries while you were walking.

In many states, the car driver is not at fault if they obey all traffic laws. You must now prove that those traffic laws were insufficient to protect innocent pedestrians.

The car driver may not be at fault if other factors are working against you in your case. For example, you may have jaywalked or crossed the street against traffic lights.

Understanding what comparative fault means is essential since it can impact your case.

Negligence in a Car Crash

In other words, the at-fault driver will be held accountable for his share of the crash and only have to pay a percentage, typically reduced by a percentage of fault attributed to the pedestrian.

The fault assigned in an auto crash lawsuit depends mainly on whether or not the case is filed in a "negligence" state.

The fault assigned to the victim in a crash case is the "comparative fault." It does not mean an admission of carelessness on behalf of the victim.

A car accident involving pedestrians often leads to severe injuries and fatalities. In such cases, the courts may take legal action against the driver to compensate for any resulting damages.

On the other hand, a car accident involving pedestrians may also lead to legal action against the pedestrian, mainly if the latter had been:

  • "Jaywalking," or
  • Violating any traffic laws

An injured plaintiff in an accident case often must rely on their comparative fault for damages to be reduced rather than the defendant's carelessness.

The multiple parties in an accident can bring a personal injury claim to the courts. In Illinois, a victim can get damages from a negligent party if 50% or more at fault.

An Injured Person in an Accident

An injured person in an accident may be under the care of a doctor and/or therapist for many weeks or even months once they are injured.

The injured person is the center of attention; they receive physical therapy, medical treatment, and needed surgery.

The injured person might be heavily medicated on pain medications, quite likely bedridden, and often has no idea how to deal with insurance adjusters or lawyers. All the injured person wants is to get back on their feet and go home.

An injured person in an accident has the right to hire an attorney who will receive all correspondence on their behalf, offer a free consultation, and take care of everything else.

Distracted walking due to a cell phone or other electronic device is becoming an ever-more common cause of car accidents involving pedestrians.

Similarly, distracted driving is rising due to cell phone use involving motorists behind the wheel.

When Two or More Drivers are Involved

Vehicles colliding together can also lead to pedestrian accidents. According to a recent report, a car accident involving a pedestrian is most likely between 3 pm and 8 pm.

According to this same report, drivers must pay close attention when they see a pedestrian in the street – whether there's a red light or not. In these cases, both driver and victim are at fault depending on who violated the traffic laws.

The Laws Set Minimum Standards for Every Driver

Some states, like Illinois, have adopted what is known as the "pure comparative fault" rule when it comes to car accident lawsuits involving pedestrians.

It means that partially responsible people (i.e., the victim) will be restricted to compensation based on their percentage of fault.

Regardless of the type of comparative fault rule adopted, the fact is that the pedestrian must pass a 50% threshold to receive any compensation at all.

The driver is held accountable for their percentage of responsibility and will only have to pay damages based upon how much they caused this accident.

It's not always the case when two or more drivers are involved. In these incidents, the courts will hold all parties accountable for their percentage of fault.

Accordingly, each defendant's insurance company may end up having to pay an amount that can be attributed to them – not the total amount of damages awarded by the court.

If one motorist collided with another driver, that other driver is the other party to the accident.

That driver's insurance company will pay damages that amount to what this other driver caused – not the total amount.

Fault or Comparative Negligence Rule

Under fault or comparative negligence rule, a plaintiff can get damages if the defendant is negligent, but that carelessness must not be greater than the defendant's carelessness.

Comparative fault means that a court can assign a percentage of fault to each party involved in a car accident. It means that the accident victim will only recover if they are allocated less than 100% fault and for the damages that they can prove were caused directly by the defendant's actions.

A classic example of hiring an experienced attorney in a crash case is when you are accused of being partially at fault.

Partially Responsible

Even if you are partially responsible for the collision that caused your injuries, you are still entitled to collect damages from at least one other person.

Suppose each party is half responsible under Illinois traffic law for an auto accident. The driver may be responsible for 70% of the damages, and the pedestrian is responsible for 30%.

If the other driver has contributed in any way to the incident, they may argue that you were at fault too. Where the other driver is partly to blame, the comparative fault rule will reduce the amount of compensation you may receive.

The percentage of fault or comparative negligence attributed to a pedestrian is vital for any personal injury case. The court determines the apportionment in determining the damages to be awarded.

For instance, if the jury establishes that the victim is 30 percent at fault and the defendant driver is 70 percent at fault and that both parties were negligent, then the victim can get damages without reducing their recovery by their degree of responsibility.

Pure Comparative Fault State

Pure comparative fault in a collision is when the victim was partially at-fault for the crash.

A pure comparative fault state is one in which the percentage of fault assigned to each party is irrelevant if it exceeds 50%.

In other words, a pure comparative fault state is one in which a victim's comparative fault does not reduce their damages. The comparative fault rules that apply to a crash depend on whether or not the state follows pure comparative fault or modified comparative fault.

Pure comparative fault states are:

  • Arizona
  • California
  • District of Columbia
  • Idaho
  • Louisiana
  • Montana
  • Nevada
  • New Mexico
  • North Carolina
  • Oklahoma
  • South Carolina
  • South Dakota
  • Utah
  • Washington

A jury determines how much each party was at-fault for a crash in pure comparative fault states.

In a pure comparative fault state, you would have to convince a jury that the pedestrian was entirely at-fault for the collision because you could not stop in time, or convince them that you are only 10% at fault, while the pedestrian is 90% at fault.

In a pure comparative fault system, a plaintiff would only win compensation equal to the percentage of responsibility that the victim bears for the collision.

The critics of a pure comparative fault claim that it erodes the rights of people who suffer injuries and damages due to someone else's carelessness.

The critics' claim is accurate: the law of pure comparative fault significantly deviates from the rights and protections traditionally afforded to those who suffer injuries due to someone else's carelessness.

Modified Comparative Negligence

When pedestrians collide with a moving vehicle, they are often left seriously injured. While the at-fault driver is charged with carelessness, whether or not that driver was negligent to the extent of the pedestrian's injuries is often hotly contested.

If the facts of the personal injury case are favorable, the pedestrian might have an opportunity to collect compensation for their pain and suffering if they were partially to blame. But what exactly does modified comparative negligence mean?

How Does Modified Comparative Negligence Work?

Comparative negligence is the standard for weighing fault in a collision case.

Comparative negligence operates on a scale where plaintiffs are assigned portions of blame by the court. However, in a modified comparative negligence system, those portions of fault are not based on a percentage scale as they would be in standard models.

Modified Comparative Fault

If you are found to be 10% at fault in a modified comparative fault state, the insurance company will only have to pay 90% of your medical bills.

In a pure comparative fault state, if you are found to be 10% at fault, the insurance company will have to pay 100% of your medical bills.

The modified comparative fault emanates from the idea that you should not be able to claim money if you were at fault, even though it may have only been 1% at fault or 1% of the crash.

The benefit of modified comparative fault is that it prevents you from getting money for a crash when you were at fault.

Paying Only a Portion of Damages

The downside of a modified comparative fault state is that the insurance company will only have to pay a proportion of your bills. The critics of modified comparative fault state that it can cause a feeling of injustice, as the victim feels that the insurance company is not being entirely fair to them.

According to the insurance industry, modified comparative fault is a 'trial tactic' designed to reduce compensation for victims of car accidents. The perception of people about modified comparative fault laws has been very negative.

Modified comparative fault means that the injured party can receive part of their compensation from their contribution to the crash and have nowhere else to turn to for the additional monetary recovery they need to be made whole again.

Pursuing Compensation for a Car Crash

Although a collision is the fault of a negligent driver, a victim may still be able to recover damages even if they were partly at fault.

In a pedestrian truck accident, non-economic damages such as pain and suffering can be pursued, but the plaintiff's share of responsibility is considered when awarding compensation.

Where the victim is partly to blame, the non-economic damages are reduced in proportion to their share of responsibility. Therefore, the more at fault the plaintiff is, the less compensation they will receive.

While compensation percentage of fault in a crash is pertinent, the amount of compensation one receives often depends on who they are filing against for damages.

Meaning that if you are a pedestrian who suffered a severe personal injury in a motor vehicle crash, you will have to contend with an additional layer of complexity when filing your case: the "comparative negligence" rule.

You can recover compensation when you have been hit by a car when the car's driver was negligent.

A distracted driver is the leading cause of almost all accidents. In an unfortunate event where a distracted driver collides with a walker, the pedestrian will likely make a claim against the driver for injuries and damages.

If you cannot recover compensation for your crash, you may be wondering if it is because of a comparative fault factor. However, should your own injuries result from a negligent driver, you need to know how your carelessness could impact your injury claim.

Suppose the responsible driver was found to have been less than 50% at fault. You will be unable to receive any compensation. However, if it is between 51 and 99 percent that the other driver was at fault, you may still be able to recover compensation.

A Limited Defense

The pure comparative fault system entails a more limited defense than contributory negligence. Under the pure comparative fault system, a victim cannot recover if found to be even one percent at fault.

 Comparative fault is a more complex system of assessing fault. This approach permits recovery if the plaintiff is less than 50 percent responsible for their injuries but reduces the award by a percentage equal to their degree of fault.

Partial liability does not bar your financial recovery but reduces the amount you could receive.

Insurance Company for the Defendants

Should an insurance company refuse to pay, the plaintiff's attorney may file a lawsuit against the insurance company on the plaintiff's behalf. If proven, the payment is usually more than what was originally offered.

Where a driver broke a traffic law and caused a collision, the driver's insurance company will often try to shift as much of the blame onto the injured plaintiff as possible.

However, to prove that a driver broke the law and was negligent and that the carelessness caused your crash, you must show that you were not at fault.

An insurance company's decision to pay or deny the claim can be the difference between getting the help you need and not getting anything after a collision.

Assigning Fault for Accidents

In other words, financial compensation is determined by your percentage of fault. So, for example, if you are deemed to be 10% at fault, you can only receive 90% of the compensation you deserve.

Traffic Laws Enactment and Enforcement

The traffic laws throughout the United States and Illinois have changed significantly over the last few decades. There have been a lot of changes that have made traffic laws more strict and difficult to break.

Any driver who breaks the law should be held accountable. For example, if you are being charged with a moving violation, you need to take action quickly to avoid having it on your driving record or incurring higher insurance costs for years to come.

According to the Insurance Institute for Highway Safety, Illinois has ranked the number one state in the United States for safety from traffic crashes.

If you have been involved in a car accident and were hit while walking by the road or in a crosswalk, an attorney is going to be your greatest ally when it comes to figuring out the next steps you need to take.

An incident like this could permanently change your life forever. There are legal actions that you can take against the driver responsible. Some of them include filing a personal injury suit, claiming compensation, and getting help for your medical expenses.

Hiring a Lawyer to Advise on the Comparative Fault Rule in an Accident Case

Are you looking for a personal injury lawyer to handle your pedestrian case with a comparative fault element?

Our expert attorneys are familiar with comparative fault elements laws and make sure your voice is heard. So, you can trust us to fight for justice on your behalf! Call us today for a free consultation.

Our law firm is here for you every step of the way as we fight aggressively against negligent drivers who put others in harm's way. Call us today at (888) 424-5757 for immediate legal advice.

Let our legal team do what it takes to make sure that justice is served so that you can focus on getting better instead of worrying about legal issues. Our super lawyers work on a contingency fee basis.

Do not indicate confidential or sensitive information on the contact form. The message contact form sends information via non-encoded email, which is not necessarily secure.


Client Reviews
Jonathan Rosenfeld was professionally objective, timely, and knowledgeable. Also, his advice was extremely effective regarding my case. In addition, Jonathan was understanding and patient pertaining to any of my questions or concerns. I was very happy with the end result and I highly recommend Jonathan Rosenfeld. Michonne Proulx
Extremely impressed with this law firm. They took control of a bad motorcycle crash that left my uncle seriously injured. Without any guarantee of a financial recovery, they went out and hired accident investigators and engineers to help prove how the accident happened. I am grateful that they worked on a contingency fee basis as there was no way we could have paid for these services on our own. Ethan Armstrong
This lawyer really helped me get compensation for my motorcycle accident case. I know there is no way that I could have gotten anywhere near the amount that Mr. Rosenfeld was able to get to settle my case. Thank you. Daniel Kaim
Jonathan helped my family heal and get compensation after our child was suffered a life threatening injury at daycare. He was sympathetic and in constant contact with us letting us know all he knew every step of the way. We were so blessed to find Jonathan! Giulia
Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa