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Jonathan Rosenfeld

July 27, 2020

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Car accidentsWhen you have been in a car accident or have suffered any other injuries, it is not guaranteed that you will be able to recover for the total amount of your injuries as an injured plaintiff, even if you have proven that someone else is to blame for the incident in your tort case.

This is because the comparative negligence laws mean that establishing the defendant’s negligence is not the end of the legal inquiry.

Instead, the court will examine your actions to see the injured person’s role in the incident or auto accident. In other words, you cannot be paid if you caused your own injury.

This doctrine applies in all types of personal injury cases, including those for:

  • Car accidents
  • Products liability
  • Medical malpractice
  • Wrongful death
  • Premises liability

However, it does not apply when strict liability exists, such as in some product liability cases.

Comparative negligence law holds that everyone owes a duty of care to each other.

The Claimant’s Contributory Fault in a Negligence Action

Based on what the court determines, your recovery could be reduced. The justice system does not believe it is fair for someone who participated in the events that led to an injury to receive their total share of the recovery.

However, the way the law works in Illinois, you can still be paid financial compensation, even if you were not blameless for the accident.

As a plaintiff in Illinois, you should be heartened that you can recover if something that you did played a part in what happened.

In states such as Maryland and North Carolina, if you did anything wrong in the accident, you cannot recover anything for your injuries in a lawsuit, even if you were only a little to blame for what happened.

Illinois Is Not a Contributory Fault Jurisdiction

In Illinois, the law is found in Illinois Statutes Chapter 735, Act 5, Section 5/2-1116. State law is a hybrid of comparative and contributory negligence laws. The exact name for the rule in Illinois is the modified comparative fault rule.

It allows for recovery for an accident victim who was less than 50% at fault for an injury but then reduces it by their responsibility for an accident in Cook County or throughout the state.

This is what is used elsewhere throughout the United States.

This stands in contrast to a pure comparative fault system that allows for recovery for plaintiffs who were more than half at fault.

Even those who were 90% to blame may recover something in a comparative negligence system.

You can still recover in a personal injury action if you were partially at fault for the mishap. However, if you bear more than 50% of the fault, you are negligent and cannot receive a settlement or a jury award.

Some states allow you to receive something even if you were mainly at fault for the accident. However, the list of these states does not include Illinois.

Types of Comparative Negligence in a Civil Action

In an automobile accident context, there are a variety of different ways that the modified comparative fault rules can come into play. The classic example is when you are hit by a speeding car, but you are not wearing a seatbelt.

Here, the leading cause of the crash is that the other driver was reckless. You would have never had a car crash in the first place if they were driving safely.

However, the fact that you were not wearing a seatbelt likely made your injuries worse.

What would happen here is that the court would look to see what percent of your injuries were caused by the fact that you were not wearing a seatbelt. It would usually be under 50%, and you can recover.

However, in some cases, wearing a seatbelt could have prevented your injuries. When that happens, the court could find that your own negligence was more than half responsible for your injuries and would get nothing.

Another example where the comparative negligence rule in Illinois law would apply is when another driver cuts you off on the road, but you were using a cell phone at the time of the accident.

This would require the court to look at the facts of the accident to see whether the fact that the other driver broke a traffic law was more than half the cause of the accident or whether you could have avoided the crash had you had both hands free.

If the court allows you to recover in this case, they would likely reduce the value of your financial compensation.

Modified Comparative Negligence in a Slip-and-Fall

Finally, if you are injured in a slip-and-fall, examples of your own comparative negligence could include running down the aisle in the store or walking in an area where there was a wet floor sign.

These may both be things that could jeopardize some or all of your recovery.

If your case goes to trial, you should anticipate that the jury will be looking at the actions of both drivers, even if it seems readily apparent that the other driver was the cause of the crash.

This will mean that you will need expert witnesses and other accident recreation experts to help construct what happened at the time of the accident for the jury.

Your personal injury lawyer must go into great detail to show that you do not bear most of the blame.

If your case involves a different type of personal injury, your actions will also be the subject of witness testimony and other evidence. The defense attorney will try to show that the claimant is at fault in your cause of action.

How Comparative Negligence Works in a Negligence Action

Comparative negligence works in Illinois because the court will determine the total damage you have suffered.

This includes economic damages, such as damages to your personal property. It also includes non-economic damages, such as compensatory damages.

Then, the court will determine the role you played in the actions that led to the personal injury claim when it determines the responsible party. This will be stated in percentage terms.

In other words, the court could decide that your actions, as the injured party, were 40% responsible for the incident. In that case, you will be entitled to the amount of the damage that was not your fault. Here, you would get 60% of the total damage amount.

The court will first decide who is at fault and will assign percentages. Then, it will determine economic and non-economic damages and apply the percentages to the award amount, giving you a total amount of recovery.

Usually, if there are two parties to a car accident, the rule is that only one party can recover. The calculations become complicated if three or more cars are involved in the accident.

For legal advice about comparative fault in Illinois, call a Chicago car accident lawyer from Rosenfeld Injury Lawyers or fill out a contact form for a free case review.


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