Our clients in Illinois frequently ask what happens if he or she was partly at fault for the accident? The short answer is your amount of fault, or negligence, affects how much compensation you can recover.  In some scenarios, it could prevent you from recovering anything. 

What Is Comparative Negligence? 

Comparative negligence, or comparative fault, is a legal rule that reduces your compensation based on your percentage of fault.  For example, Driver A (the other driver) ran a red light to cause the car wreck.  You, Driver B, however, were speeding at the time.  The jury might assign 80% of fault to Driver A and 20% of fault to you.  In most states, you can still recover damages even if you were partially at fault.

How Comparative Negligence Works

Basically, in most personal injury cases, your fault will be “compared” with the party or parties you claim were at fault and/or sue in court.  Insurance companies, judges, or juries make those determinations.  In the end, those percentages must equal 100%.

Your compensation will be reduced by your percentage of fault.  In the previous example, the jury assigned 80% fault to Driver A for running the red light and 20% to you for speeding.  Let's say your total damages (medical bills, lost income, pain and suffering) amounted to $10,000.  The award would be reduced by 20%, or $2,000, such that you would ultimately be paid $8000.

Different Types of Comparative Negligence

Every state uses one of three types of comparative negligence laws.  The first type is called “pure” comparative negligence.  Under that system, you can recover even if you are found 99% at fault.  The $10,000 award above would be drastically reduced, but you would still recover $100.  

The second type is “modified” comparative negligence (50% Rule), in which you recover only if you are less than 50% at fault.  If you are assigned 50% or more fault, you lose.  Any apportionment of fault of less than 50% would be used to reduce your award.  In baseball parlance, tie goes to the other side.

The third type is modified comparative (51% Rule).  It's slightly different from the second type, in that under the 51% Rule, you can recover only if you are not more than 50% at fault.  Unlike the second type, you can still recover if you are 50% at fault.  

You lose if you are 51% or more at fault.  A tie, here, works in your favor.

Under 735 ILCS 5/2-1116, Illinois is one of 23 states continuing to use the modified comparative negligence system (51% Rule).

Why Comparative Negligence Matters in Your Case 

Comparative negligence is a legal defense insurance companies understand and use to reduce the value of your claim.  Adjusters will often try to shift more blame onto you.  Even small percentages of fault reduce your payout.  The concept of comparative negligence will play a factor even in pre-lawsuit negotiations because adjusters evaluate your claim based on what their insured might be held liable for in court.  They tend to get more aggressive in their investigations in modified comparative fault states because of the potential of completely zeroing out your recovery with proof that you were just as much to blame or just slightly more to blame for the incident.

So, it is important that you obtain and collect as much evidence as possible, as fast as possible. That evidence in your standard motor vehicle accident case might include: 

• Police and incident reports;
• CCTV video footage;
• Witness statements;
• Expert testimony;
• Accident reconstructions.

An attorney works to build your case, minimize your fault, and protects your right to full compensation.

Conclusion

Comparative negligence doesn't automatically prevent recovery.  It's important, though, to understand the comparative fault system that will be applied because it may significantly reduce your recovery or in certain circumstances, prevent you from making a recovery altogether.  It's also commonly argued by adjusters, inappropriately in many cases, to reduce your payout on an insurance claim.  If you've been injured and are being blamed for the accident, speak with an experienced personal injury attorney to understand your rights. Our Illinois personal injury attorneys are here to help. The author, Jose M. Bautista, is a partner at Bautista LeRoy LLC.  Should you have any questions or wish to discuss the article, our attorneys can be reached at www.bautistaleroystl.com or 833-381-6589.