When you’ve been injured in an accident, figuring out who’s at fault and how much you’re owed can be both confusing and frustrating. In the State of Illinois, it’s important to understand how the state’s modified comparative negligence law, sometimes called the contributory fault law, can contribute to the outcome of your claim and your final settlement amount. To learn more about your rights and how to best protect your ability to recover your full settlement amount, call the Law Office of Glenn & West, LLC directly today. We offer free consultations.
The Role of Fault in a Personal Injury Case
When someone causes harm to another as a result of negligence, they can be held liable for the injured person’s damages. In order to recover compensation in a personal injury lawsuit, the injured person must be able to prove that the defendant owed them a duty of care, breached the duty of care owed to them, and that the breach of the duty was the direct or proximate cause of harm that is called “damages”. Those damages have to be proved in court if the case does not settle before a trial.
Illinois is also an at-fault state when it comes to car accidents. This means that whoever is at fault for the accident is responsible for paying for it, which means that that person’s auto insurance pays for it. As such, in all types of personal injury claims, car accidents, and other cases, fault plays a big role in who’s legally responsible—or liable—for damages after an accident.
What Is Comparative Negligence?
Modified comparative negligence or contributory fault is directly related to fault and liability. Contributory fault means “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 being sought” (735 ILCS 5/2-1116). In other words, contributory fault simply means the fault of more than one party, including the party who is seeking damages.
Comparative negligence, then, is the rule that governs how contributory fault impacts the amount of damages a plaintiff can recover. Under the modified comparative negligence standard that’s used in Illinois, an injured party can only recover compensation for an injury if their own percentage of fault was less than 50 percent. If the injured party’s percentage of fault was 50 percent or more, they will be barred from recovery.
If the percentage of fault is less than 50 percent, the injured party still has the right to recover damages from the majority-at-fault party (or parties). However, the recovering party’s damages will be reduced in proportion to their own degree of fault. For example, if a plaintiff is found to be 20 percent at fault for their accident/injuries and a defendant is found to be 80 percent at fault, then the plaintiff will only be able to recover 80 percent of their total damages amount, including all economic and noneconomic losses.
How Is Comparative Negligence Determined?
Determining comparative negligence/contributory fault isn’t always easy. Indeed, many insurance companies may be eager to pin fault for an accident on the plaintiff’s shoulders in order to reduce the dollar amount that the insurance company is liable for. For instance, we have had insurance companies say our client was 10% at fault even though their insured rear-ended them at a high rate of speed. As such, having a good lawyer on your side is incredibly important when you’re involved in a personal injury claim, especially if you have been found comparatively negligent for your injuries.
In order to make an accurate determination about comparative negligence, representatives of the parties involved should conduct a thorough investigation. The investigation process should include reviewing all evidence, including accident reports, physical evidence from the scene, photos, eyewitnesses’ testimonies, involved parties’ testimonies, video footage, and experts’ opinions, as well as any other relevant evidence.
How to Resolve a Comparative Negligence Dispute
Even with the best investigatory tactics available, there may still be a dispute between the plaintiff and the insurance company regarding the degree of the plaintiff’s contributory negligence. When this is the case, dispute resolution should occur. Because personal injury claims are civil cases, they are handled through civil courts. Before bringing the case to a lawsuit, mediation is strongly recommended and often required by the judge in the case.
Mediation is a process that is facilitated by a third-party mediator. The purpose of mediation is to seek an agreement about disputed items—for example, the degree of contributory fault of the plaintiff and the final settlement offer. Mediation is a more cost-effective dispute resolution method when compared to litigation, and also gives the parties involved more control regarding the outcome. If mediation fails, litigation may be the next step.
The Role of a Personal Injury Lawyer
When you have been injured and are thinking about filing a personal injury claim to recover monetary damages for your harm, working with a personal injury attorney is strongly recommended. A personal injury attorney offers many services throughout the claims process, including:
- Reviewing your case and determining the viability of your claim;
- Gathering evidence and managing the investigatory process;
- Proving the fault of the defendant and disproving any allegations of fault made against you;
- Calculating your damages amount;
- Negotiating with the insurance adjuster to reach a fair settlement amount;
- Representing you in mediation;
- Representing you in litigation if necessary; and
- Potentially the most important service of being available to you for your questions and helping reduce your fears/anxiety about the situation.
Throughout the process, your attorney will be your biggest advocate. The goal of an attorney is to secure you the largest settlement amount possible.
Call the Law Office of Glenn & West, LLC Directly Today
If you have been involved in an accident and have questions about the personal injury claims process, don’t hesitate to call a skilled Illinois personal injury attorney with experience working on cases like yours. Whether you want to learn more about comparative negligence in Illinois or another facet of personal injury law, we can help. We always offer free consultations and work on a contingency fee basis (meaning you do not pay anything for our services up front). To learn more about how to get started with our personal injury law firm, please call us directly, send us a message online, or visit our law office in person at your convenience. We are here for you!