A driver does not have to be completely free from fault to recover compensation after an Illinois car accident. Many crashes involve allegations that more than one person contributed. One driver may have failed to yield while the other was speeding, or a rear driver may have followed too closely while the front driver made an unsafe lane change.
Illinois resolves these disputes through modified comparative negligence. Under 735 ILCS 5/2-1116, an injured person may recover damages when that person’s share of fault is 50 percent or less. Compensation is reduced by the assigned percentage of fault. Recovery is barred only when the injured person is more than 50 percent responsible for causing the injury or damage.
Because even a small increase in an assigned percentage can substantially reduce a settlement, insurers often focus heavily on comparative negligence. Injured drivers should not accept an adjuster’s assessment without examining the police report, photographs, video, witness accounts, vehicle damage, and applicable traffic laws.
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Comparative negligence is the legal method used to divide responsibility when the injured person and another party both contributed to an accident.
The person pursuing compensation is commonly called the plaintiff. The person or business accused of causing the accident is the defendant. If both were negligent, a percentage of fault may be assigned to each.
Illinois law states that a plaintiff whose contributory fault is not more than 50 percent may recover damages, reduced in proportion to that percentage. If the plaintiff’s fault is more than 50 percent of the proximate cause of the injury or damage, recovery is barred.
Illinois courts use the same framework when instructing juries. The Illinois Pattern Civil Jury Instructions state that fault of 50 percent or less does not bar recovery, while fault exceeding 50 percent requires a finding for the defendant.
The rule is sometimes called the “51 percent bar.” Recovery is barred when the injured person is 51 percent or more responsible, not when the person reaches exactly 50 percent.
If an injured driver is assigned 20 percent fault, recoverable damages are reduced by 20 percent. If the driver is exactly 50 percent responsible, the driver may still recover 50 percent of the proven damages. At 51 percent fault, the claim is barred.
Assume an injured driver proves $150,000 in damages. At 10 percent fault, the recoverable amount is $135,000. At 30 percent fault, it is $105,000. At 50 percent fault, it is $75,000.
The calculation is based on the total proven damages, not merely the amount initially offered by an insurer. Disputes can concern both the value of the damages and the percentage of responsibility.
During an insurance claim, an adjuster may make an initial determination. That assessment affects what the insurer offers, but it is not legally binding on the injured person.
The parties may negotiate a different allocation when additional evidence becomes available. If a lawsuit proceeds to trial, the judge or jury determines whether each party was negligent, whether that negligence caused the injuries, the total damages, and the percentage attributable to the plaintiff.
A claimant may challenge an insurer’s assessment through evidence, negotiation, litigation, and, when appropriate, expert analysis. The Illinois Department of Insurance recognizes that a third-party insurer may reduce its offer according to the percentage of fault it assigns to the claimant.
Comparative negligence gives an insurer two possible ways to reduce payment. It may try to place more than 50 percent of the blame on the injured person and bar the claim entirely. Alternatively, it may assign a lower percentage that still reduces the settlement.
Common allegations include that the injured driver was speeding, distracted, following too closely, driving too fast for conditions, failing to keep a proper lookout, making an unsafe lane change, or entering an intersection without sufficient caution.
These arguments are fact-specific. A driver with the right of way may still be accused of failing to react reasonably to an obvious danger. However, the fact that a collision might have been avoidable does not establish a particular percentage of fault.
Fault should be evaluated using the complete evidence rather than one driver’s account. Relevant evidence may include the police report, scene photographs, vehicle damage, surveillance or dash-camera footage, witness statements, traffic signal data, mobile phone records, event data recorders, commercial driver records, and accident reconstruction.
Damage can help establish the angle of impact. Skid marks and debris may show vehicle movement. Video can clarify which driver entered an intersection first or whether a lane change occurred.
Evidence can disappear quickly. Businesses may overwrite recordings, vehicles may be repaired or destroyed, and witnesses may become difficult to locate. Prompt preservation is particularly important when an insurer begins shifting blame.
For additional guidance, read the firm’s page about evidence that can help prove an Illinois car accident claim.
A rear driver is often accused of following too closely or failing to stop, but the rear driver is not automatically 100 percent responsible. The front driver may have reversed, entered a lane unsafely, lacked functioning brake lights, or stopped abruptly without a legitimate reason.
Read more in Rear-End Collisions In Illinois: Is The Rear Driver Always At Fault?.
A driver who fails to yield while turning left may bear substantial responsibility. The oncoming driver may also be accused of speeding, running a light, driving without headlights, or failing to keep a proper lookout.
Traffic-camera footage, signal sequencing, witnesses, and vehicle damage can be critical when both drivers claim the right of way.
Multi-vehicle accidents can involve several negligent drivers. One may cause the initial impact while another contributes by following too closely or failing to respond to stopped traffic.
Fault does not have to be divided equally. Different percentages may be assigned based on each party’s contribution. See the firm’s guide to Illinois chain-reaction crashes.
Pedestrians and bicyclists may also face comparative-negligence allegations. An insurer may claim that the injured person crossed outside a crosswalk, entered traffic unexpectedly, failed to use required lighting, or disregarded a traffic control.
A driver still has duties to maintain a proper lookout and use reasonable care. A violation by the injured person does not automatically establish majority fault.
Passengers usually do not control either vehicle and may pursue claims against one or multiple negligent drivers. A passenger’s own comparative fault is uncommon but could be alleged when the passenger’s conduct directly contributed to the collision.
Under current Illinois law, failure to wear a required seat belt may not be treated as evidence of negligence, may not limit an insurer’s liability, and may not reduce recovery for damages arising from the operation of a motor vehicle.
This rule prevents nonuse from being used to assign comparative fault or diminish damages under current law. Because legislation can change, the law in effect on the accident date should be reviewed.
No. Comparative negligence concerns conduct that contributed to causing the accident or injury. Mitigation concerns what the injured person reasonably did afterward to avoid unnecessarily increasing the losses.
An insurer may allege comparative negligence because a driver was speeding before impact. A separate mitigation argument might claim that the person unreasonably failed to obtain recommended treatment and allowed the condition to worsen.
Missing one appointment does not automatically eliminate compensation. The issue is whether unreasonable post-accident conduct caused an identifiable increase in damages.
When comparative negligence applies, the percentage reduction generally affects the overall compensatory damages awarded. This can include medical expenses, lost income, pain and suffering, disability, loss of normal life, disfigurement, and property damage. Section 2-1116 expressly applies to negligence actions involving bodily injury, death, and physical damage to property.
Assume a jury finds $80,000 in economic losses and $120,000 in noneconomic damages. If the person is 25 percent at fault, the $200,000 total is reduced to $150,000 before other legally required adjustments.
A disputed percentage can therefore affect far more than vehicle repairs. In a serious injury claim, even a 10 percent difference may substantially change the recovery.
Insurers may raise comparative negligence before all evidence has been gathered. An adjuster may offer only a percentage of the claimed losses or deny payment based on an asserted majority-fault determination.
A claimant does not have to accept that percentage. Photographs, witness statements, traffic laws, vehicle data, expert analysis, and inconsistencies in the insured driver’s account may support a different allocation.
The claimant should also distinguish between a fault dispute and a damages dispute. An insurer may accept that its driver was primarily responsible while still contesting medical causation, treatment, wage loss, prognosis, or noneconomic damages.
Report the crash, preserve photographs and video, identify witnesses, obtain appropriate medical care, and avoid speculative statements. Do not guess about speed, distance, or timing when speaking with police or insurers.
Review the police report for objective errors. Preserve the damaged vehicle when the impact location or a mechanical defect may be disputed. Avoid posting about the accident on social media, and do not sign a release before the fault and damages issues are understood.
An attorney can investigate the collision, secure evidence, identify multiple responsible parties, challenge an unsupported percentage, and file suit before the Illinois limitations period expires.
For an overview of the complete process, visit the firm’s Illinois Car Accident Claims Guide.
Yes. You may recover when your share of fault is 50 percent or less. Compensation is reduced by the percentage attributed to you. Recovery is barred when your share exceeds 50 percent.
Yes. Illinois law states that fault of 50 percent or less does not bar recovery. At exactly 50 percent, proven damages are reduced by 50 percent.
You cannot recover damages from the defendant in that negligence claim. This is why the rule is often called the 51 percent bar.
No. A police report may be important evidence, but an officer’s narrative or citation does not conclusively determine civil fault. An insurer makes an initial assessment, while a judge or jury can make the final determination in litigation.
Yes. An insurer may revise its evaluation when new evidence is presented. The injured person may also reject the assessment and continue negotiating or pursue litigation.
Citations may be relevant, but they do not automatically establish the final percentages. The complete admissible evidence and the relationship between each act and the collision must be considered.
Yes. Section 2-1116 applies to negligence actions involving bodily injury, death, or physical property damage. A fault percentage may reduce both the injury and vehicle-damage portions of a claim.
Yes. Multi-vehicle crashes may involve several responsible drivers. Fault can be allocated among the injured person and other parties according to each one’s contribution.
It is possible but unusual. A passenger generally has no control over the vehicles. Comparative fault would require evidence that the passenger’s own conduct contributed to causing the injury.
Under current Illinois law, failure to wear a seat belt cannot be considered evidence of negligence and cannot diminish recovery for damages arising from a motor vehicle accident.
Not without reviewing the supporting evidence. Insurers may make early decisions using incomplete statements or documentation. A serious or disputed claim should be independently evaluated before a settlement or release is accepted.
Comparative negligence can reduce an Illinois car accident recovery or eliminate it when the injured person is assigned more than 50 percent of the fault. An insurer may begin shifting blame before witnesses, video, vehicle data, and other evidence have been secured.
Robert Edens Law Office represents injured drivers, passengers, pedestrians, and bicyclists throughout Antioch, Waukegan, Grayslake, Lake Zurich, Woodstock, Barrington, Lake County, McHenry County, and surrounding Northern Illinois communities.
Call (847) 395-2200 or contact Robert Edens Law Office to request a free consultation about a disputed-fault Illinois car accident claim.
This page provides general legal information and is not a substitute for advice about a particular accident or claim.
The Law Offices of Robert T. Edens, Personal Injury and Workers' Compensation Law Office, have offices in Antioch, Waukegan, Grayslake, Woodstock and Barrington. We represent clients throughout the communities of Antioch, Waukegan, Grayslake, Barrington, Woodstock, Buffalo Grove, Deer Park, Gurnee, Lake Zurich, Round Lake, McHenry, Cary, Crystal Lake, Libertyville, Lincolnshire, Mundelein, Vernon Hills, Wheeling, North Chicago, Zion, Inverness, Palatine, Wauconda, Island Lake, Fox Lake, Barrington Hills, Spring Grove, Lake Bluff, Lakemoor, Long Grove, Lake Villa, Kildeer, Wadsworth, Indian Creek, Fox River Grove, Lindenhurst and other cities within Lake and McHenry Counties Illinois.
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