- Firm Overview
- Practice Areas
- Family Law Victories
- Personal Injury Victories
- Info Center
In many personal injury cases, one party is very clearly responsible for the actions or negligence that caused the claimant’s injuries. For example, a claimant may have been driving his car under the speed limit in the right lane of a highway when a speeding truck, driven by operator in violation of mandatory rest protocols, swerves into the car’s lane and forces it off the road. The truck driver, and possibly the carrier company, would likely be held fully liable for any injuries caused as a result of the accident. What if, however, the car driver was also speeding and was texting in the moments before the crash? Could the driver of the car still be compensated for his injuries? According to the Illinois laws regarding contributory fault, the answer may still be yes.
What is Contributory Fault?
While there are, of course, many situations like the first example above, in which liability is very black and white, an even greater number lie somewhere in the gray area in between. Often, both the defendant and the claimant, or plaintiff, have, in some way, contributed to the occurrence of the accident. When injuries result from such an accident, it is generally left to the court to decide the level of liability assigned to each party.
Under Illinois law, contributory fault is defined as “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 injuries or damages for which he or she is seeking recovery. The law goes on to say that that “trier of fact,” or judge, must determine the percentage of contributory fault, and if the plaintiff is found to be more than 50 percent at fault, he or she may not collect damages. If he or she is less than 50 percent at fault, recovery is permitted, but will be reduced by the percentage of contributory fault.
For example, in the second example above, the plaintiff may have suffered $50,000 in damages, for medical care, property damages, and lost wages. The court may determine that his speeding and texting contributed 40 percent of the liability for the accident. The claimant would be able to recover $30,000, as 40 percent of $50,000 or $20,000 was attributed to his own liability.
Comparative Fault in Other States
Illinois is one of 33 states which utilize a modified contributory fault rule, allowing recovery to be reduced by the percentage of liability assigned to the claimant. Twelve states bar recovery if the contributory fault equals 50 percent or more, while 21, including Illinois, Indiana, and Michigan, only bar recovery if the claimant’s fault exceeds 50 percent.
Thirteen states permit recovery if the defendant is found to be even one percent at fault. Under this rule, known as pure comparative fault, the recovery is still reduced by the percentage of the claimant’s fault, up to 99 percent. The remaining four states and the District of Columbia completely bar recovery if the claimant is found to have any degree of fault whatsoever. Known as pure contributory negligence, such a rule can only be overcome is by proving willful and wanton acts by the defendant proximately caused the claimant’s injuries.
If you or someone you love has been injured in an accident and there are questions regarding how to assign liability, contact an experienced DuPage County personal injury attorney. At Martoccio & Martoccio, we understand how to help you get the compensation you deserve while working within the law to protect your rights. Call 630-920-8855 to schedule a complimentary consultation with one of our qualified injury lawyers today.