In Illinois, a car accident victim can still recover from the other party provided that the victim was less than 51 percent at fault for the accident. Often, car accidents are caused by multiple factors, such as one person speeding and another person not yielding while turning. Illinois lawmakers have modified how a victim’s own negligence affects whether he or she can still recover for the injuries sustained.
An auto accident lawyer Chicago can explain that Illinois’ original way of handling this issue was by creating a complete bar to recovery. This legal standard is referred to as “contributory negligence.” While this principle was in place, any degree of negligence that the victim contributed to the case would completely preclude him or her from being able to recover for the damages that he or she sustained. Fortunately for accident victims, this is no longer the law in Illinois.
Pure Comparative Negligence
In 1981, the Illinois Supreme Court adopted the pure form of comparative negligence in a court case. It abolished the principle of contributory negligence. An auto accident lawyer Chicago can explain that this type of model reduces the percentage of recovery by the victim’s own negligence, regardless of the degree of negligence. This allowed victims who were 80 percent responsible for the accident to still recover for 20 percent of their damages. This shift resulted in more accident claims being able to be filed and more damages open for recovery for accident victims.
Modified Comparative Fault
An auto accident lawyer Chicago can explain that pure comparative negligence was adjusted to modified comparative fault in 1986 when the legislature enacted this model for most negligence causes of action. Under this model, the plaintiff’s recovery is reduced by the amount of the plaintiff’s own negligence. For example, if he or she is found to be 30 percent negligent for the accident, his or her damages are reduced by 30 percent. The distinction between the modified comparative fault and the pure comparative fault is that the plaintiff cannot recover in claims for which he or she is more than 50 percent at fault. He or she can only recover in situations in which he or she is equally at fault for the accident as the defendant or less than 50 percent at fault.
This model is used in all negligence actions for bodily injury, death or property damage. This includes car accidents and product liability cases.
To understand the different treatments based on the negligence models discussed above, it is helpful to examine an example, such as the following:
Driver A was traveling on a road and was texting. Driver B was turning left and supposed to yield to Driver A. Driver B collided with Driver A while turning. A jury finds that Driver A is 40 percent responsible for the accident and Driver B is 60 percent responsible for the accident.
The way the different systems would treat this situation would be the following:
- Contributory negligence – Neither Driver A nor Driver B would be able to recover for their damages because they both contributed to the accident.
- Pure comparative fault – Both Driver A and Driver B could file a lawsuit and seek recovery for the damages that they suffered, even though Driver B is more at fault.
- Modified comparative fault – Driver B could not recover for the damages that he suffered because he is 51 percent or more responsible for the accident. Driver A could recover for her damages. If her damages were $100,000, these would be reduced by the 40 percent that was her fault. The maximum she could recover would be $60,000.
Effect of Comparative Fault
The plaintiff has the burden of proof of showing that the defendant’s own negligence caused the accident. To reduce the amount of recovery, the defendant has the burden of showing the plaintiff’s degree of negligence. The comparative fault must be pleaded as an affirmative defense in the answer to the complaint that the plaintiff files. The comparative fault does not prevent a judgment. However, it can reduce the amount of money the defendant has to pay for the accident. Comparative fault cannot be alleged against a passenger in Illinois.
Exceptions to Comparative Fault
In some situations, modified comparative fault will not be used. For example, the Structural Work Act prohibits the defense of comparative fault. Under this law, the legal inquiry is the defendant’s culpability and liability for the injury. Comparative fault also does not usually apply in cases in which the injury is caused by willful or wanton conduct. An auto accident lawyer Chicago may describe these acts where a person’s actual intention is to harm the victim or the defendant is so indifferent that he or she has a conscious disregard for the safety of others.