In most Illinois personal injury claims, negligence is at the heart of the dispute. However, your negligence will also be assessed when fighting for compensation in a lawsuit.
That is because Illinois follows the commonly-followed comparative negligence rule. It is not rare for the other party to claim you acted carelessly in your accident, no matter how ludicrous. Our lawyers can explain how this rule will impact your lawsuit and how to file claims you contributed to the accident. Fortunately, acting negligently in your case will not automatically prevent you from recovering compensation. As long as you were not mostly to blame, we should be able to get some coverage for your damages. Trying to fight comparative negligence without the help of our attorneys could end up costing you the money that you rightfully deserve.
For a free case assessment with our Illinois personal injury attorneys, contact Rhatigan Law Offices by calling us at (312) 578-8502.
Does Illinois Use a Comparative Negligence Rule to Determine Fault in Injury Lawsuits?
When you are injured in a slip and fall, a car accident, or suffer other personal injuries because of someone else’s actions, you will likely want to file a lawsuit against them. Lawsuits help cover the damages caused by other people’s negligence. But what if you are partially responsible for causing your injuries? You might worry that you will lose out on any chance to recover compensation if you are somewhat at fault. Fortunately, Illinois is one of the many states that does not prevent victims from filing a lawsuit, even if they share some of the blame.
Different states have different rules for determining negligence in a lawsuit. Illinois uses a “modified comparative negligence” rule, which is arguably the most modern form of the rule. However, this rule can profoundly impact your claim and the potential damages you recover. While you can still file a lawsuit if you were negligent, your actions will be held against you. Our Illinois personal injury lawyers can determine the extent of your own negligence and how we can fight these claims. The following will help you understand how comparative negligence works in Illinois and how it can reduce compensation:
Contributory Negligence vs. Comparative Negligence
The idea of comparative negligence has been in the law for a considerable amount of time. The original rule that Illinois comparative negligence law evolved from is known as “contributory negligence.” Historically, a plaintiff could not recover any damages if they were responsible in any way for their accident. Thus, a victim would not be compensated even if the defendant was found 99% at fault. This is obviously a harsh rule to place on injury victims, which is why only a handful of states still use it.
Most states, including Illinois, use some form of modified comparative negligence. Some states have a “pure” comparative negligence rule, where plaintiffs can recover compensation as long as they are not 100% at fault for the accident. If an injury victim was found 99% negligent, they could still recover 1% of their damages in these jurisdictions. Essentially, there is no percentage in which the plaintiff is barred from recovery.
In other states, plaintiffs’ contributory fault must be 49% or less to collect damages. This is commonly known as the “50% bar rule.”
Illinois’s modified comparative negligence rule, also known as the “51% bar rule,” prevents victims from getting compensation if their negligence is greater than the defendant’s. According to 735 I.L.C.S. 5/2-1116(c), plaintiffs are barred from recovering damages if their contributory fault is more than 50%. To put it another way, you can still recover compensation as long as your share of negligence is found to be at 50% or less. If you are found 50.5% or 51% at fault, that will be enough to bar your award. If you were found less negligent in your lawsuit, your compensation will be reduced in proportion to the percentage of fault you were assigned.
Determining the Percentage of Comparative Negligence
There is no set formula for applying Illinois’s comparative negligence rule. The rule is highly dependent on the specific facts of each case, so each one will need to be reviewed to see where the defendant might make these arguments.
Take a car accident case as an example since comparative negligence claims are common in these cases. As they are going through a green light, Driver A is hit when Driver B makes an illegal left-hand turn. It appears that Driver B is completely at fault for the crash. However, during litigation, Driver B presented evidence that Driver A was going ten m.p.h. over the speed when the accident happened.
The question now becomes, did the act of speeding contribute to causing the accident? If the conclusion is that Driver A would not have been in the intersection to be hit had they not been speeding, they will likely be found contributorily negligent. If Driver A had been hit regardless of their speeding, they might have been found only slightly negligent or not at fault at all since the speeding was not a material factor in the accident.
Once the negligent conduct has been identified through evidence, a percentage will be assigned. In the example above, going a little over the speed limit might cost you some compensation, but the percentage is likely to be low. Speeding through a green light might be assigned 10% of the blame, while failing to see another vehicle and illegally occupying the lane would be assigned the other 90% since it was much more impactful.
Thus, if Driver A’s award is $100,000, 10% will be subtracted from that to account for their negligence, leaving them with $90,000 in recovered damages. Our attorneys will have a good idea of what liability you could be exposed to after reviewing the facts of your case.
Who Decides Comparative Negligence?
Who decides the issue of comparative negligence depends on what stage the case is in. If you are in settlement negotiations with the insurance company, comparative negligence will typically be argued over by each side’s attorneys. Many lawsuits begin by filing an insurance claim. When the claim is filed, it should include evidence showing the policyholder’s negligence and why you deserve to be compensated. However, the insurance company will use that evidence and its own to find any avenues to argue that you contributed to the accident.
As such, it is common for insurance companies to stretch claims of comparative negligence in the hopes that you will lose faith in your case and settle for less than you deserve. Our attorneys are familiar with these tactics and know how to fight them. If the percentage of fault cannot be ironed out by each side’s attorneys during settlement negotiations, we will pose the question to the court.
Who decides negligence in a personal injury lawsuit will depend on what type of trial you are having. There are two types of trials: jury trials and bench trials. Most people are familiar with jury trials. There, a jury will first decide whether compensation should be awarded in a negligence case, then decide the matter of fault. The judge cannot interfere with the jury’s ruling on comparative fault, but we can appeal the decision if it goes against you.
In a bench trial, the judge is the only party who hears the evidence and decides the issue of fault. There are some advantages to a bench trial over one with a jury. The judge will likely understand the evidence much more than a typical juror and how the law applies to the facts of your case.
However, judges are infamous for being unsympathetic and unmoved by personal plights. Thus, they might be less willing to give the plaintiff the benefit of the doubt when the defendant claims comparative negligence. Historically, juries tend to be more sympathetic to injury victims, so it might be better to have a jury decide the issue of fault in your case.
Common Scenarios Where Illinois’s Comparative Negligence Rule is a Factor
Negligence arises in numerous types of personal injury cases. For instance, comparative negligence is a common question in most car accident claims. Most people do not drive perfectly all the time, so it is likely that the defendant will have some room to argue your negligence. This question will turn on what the evidence substantiates and whether we can show that your own negligence was not a factor.
Claims of comparative negligence are also likely in motorcycle and pedestrian accidents. If you were not wearing a helmet while riding or crossing in the middle of the street, fighting these claims will typically be more challenging.
How to Fight Claims of Comparative Negligence in Your Illinois Injury Case
If the defendant is claiming that you partially or totally caused your own accident, you risk losing real money you need to recover completely. Thus, you will want to know what steps to take to fight claims of comparative negligence. The fight against these accusations will begin before you even file your claim, as crucial evidence can start being gathered immediately. You will need to get medical treatment, talk to witnesses, and get any physical evidence that can support your claim that the accident was solely the defendant’s fault. Of course, our attorneys can help with all that and more.
Get Immediate Medical Care
The first step after being injured in any accident is getting immediate medical treatment, even if you believe you are partially responsible for the accident. If you decide to get medical care later, it will create an opening for the defendant to argue that you did not want to get treatment because the injuries were your fault.
Getting immediate treatment can help show a connection between your injuries and the defendant’s negligence. Our lawyers can then argue that you have been hiding nothing since you visited the emergency room right after the accident.
Gather Physical Evidence
Physical evidence can go a long way in combating claims of comparative fault. Physical evidence can contradict claims that you failed to act with care by showing the defendant is incorrect or lying about your negligence. Perhaps you were injured by a product that had no instructions or warning labels. If the company that made the product claims you did not follow the directions, you can use the product itself to show those instructions were never provided or they were written incorrectly.
Taking photos or videos of your phone can also help preserve important details from the scene that point to the defendant’s liability. For instance, if you were injured in a slip and fall accident in a store that failed to clean a spill, be sure to take pictures of the area so that the liquid is visible. If the defendant claims the area was clean and you slipped on your own, we can introduce your pictures to contradict these claims.
Provide Witness Testimony
Witness testimony often carries a great deal of weight when deciding the issue of negligence. Witnesses can offer unbiased views of the accident that the court might find more reliable and trustworthy than other evidence.
The court expects plaintiffs and defendants to be biased in their own cases. That does not mean the court believes they are lying. It simply means they believe the facts support their claims more than the other side’s. Witness testimony can tip the scales in your favor if it is your word against the defendant’s. Perhaps you did not take pictures of the liquid you slipped and fell in, and the defendant claims there was no spill. If several witnesses testify to seeing the puddle before you slipped, you will likely rebuff the defendant’s claims of negligence.
Contact Our Attorneys
Arguably, the best way to fight charges of comparative negligence is to work with our attorneys. Insurance companies can be convincing and might talk you into a settlement based on your negligence that is lower than what you would have received had you been represented by legal counsel. By working with our lawyers, the defendant’s insurance company and attorneys will be less likely to take advantage of your situation.
Our team will review every detail of your case to determine where your own negligence contributed. Thus, starting your case immediately is critical. This way, we can get ahead of the problem and prepare arguments before we enter settlement negotiations. It will also give us time to collect the evidence mentioned above. Even if we cannot totally fight claims of comparative negligence, having an attorney on your side is the best way to reduce the percentage of fault and maximize the compensation you ultimately receive.
Our Illinois Personal Injury Attorneys Can Help Your Case Today
For a free initial case assessment with our Chicago, IL personal injury lawyers, call Rhatigan Law Offices at (312) 578-8502.
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