In personal injury cases where both parties—the plaintiff and the defendant—are partially at fault, there are laws in place that may limit the damages the plaintiff is entitled to recover. In most states, comparative fault is the legal doctrine that is used, but there are states that use contributory negligence instead.
Comparative Fault Vs. Contributory Negligence
Comparative fault is a more recent legal doctrine than contributory negligence, and many states have adopted it since it’s much less harsh on the plaintiff (i.e. the party who was injured and is filing the lawsuit). Put simply:
- Contributory negligence completely bars plaintiffs from recovering damages if they are found partially at fault for an accident.
- Comparative fault reduces damages by a certain percentage if the plaintiff is partially at fault.
Let’s look at these two in a little more detail.
Contributory Negligence
It used to be that if you were partially at fault for your own injury in an accident, the other party who caused your injury wouldn’t be held liable for it, and as such, you wouldn’t be able to recover damages. This is the rule of contributory negligence, and only a few states use this doctrine today.
The rule is absolute. According to this rule, even if you were only 1% at fault for an accident that left you with a serious injury, you wouldn’t be able to recover any damages whatsoever.
Comparative Fault
Given how harsh contributory negligence is to injured parties, most states, including Illinois, have adopted comparative fault as the rule for figuring damages in a personal injury lawsuit.
Under comparative fault rules, if you are partially at fault for your injury, the amount you can recover in damages is reduced proportionally. As such, if a court finds you 25% responsible for your injuries, the amount you’d be able to recover would be reduced by 25%.
It’s worth noting that there’s still a possibility that you won’t get anything for your injury. For instance, if you are more than 50% responsible, Illinois law bars you from recovering damages. Other states have varying rules, with some stating that you must only be slightly at fault, while others use “pure” comparative fault that allows anyone to recover some portion of damages regardless of how much fault they have.
Determining Comparative Fault
Often, defendants will use the comparative fault doctrine to reduce their liability in the event of a personal injury accident. In a car accident, for instance, the defendant may claim that the injured party was using a cell phone and therefore was partially at fault for their accident. For instance, if a jury rules that such conduct would make you 30% at fault, then your damages would be reduced accordingly.
The amount of fault someone is assigned in these cases is often subjective, but prior cases can be consulted to arrive at an appropriate value. For instance, if a case similar to yours found the plaintiff 20% at fault for their injuries, you’d be likely to face similar figures.
Having an experienced attorney on your side is vital in cases where you might be found partially at fault for your accident. If you have been injured in an accident, Hart David Carson LLP can help.