Comparative Negligence in Illinois

According to comparative negligence laws in Illinois, you are entitled to compensation for damages from a car accident if you are found 50% or less at fault.
Written by Mary Cahill
Reviewed by Kathleen Flear
Illinois applies modified comparative negligence to conclude who can receive compensation for injuries or damages after a car accident. In accordance with Illinois’s comparative negligence law, you are entitled to compensation if you are determined to be 50% or less at fault.  
Let’s be real here, accidents are never pleasant—and sometimes who's at fault isn’t immediately clear. In a situation like this, the comparative negligence law will be used to affix a percentage of blame to the drivers involved in a crash.
The way the law works varies by state, so you’ll want to understand the legal process where you drive. In this article,
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What is comparative negligence? 

By law, comparative negligence allows those who have been involved in an accident to receive partial compensation for incurred injuries or damages with regard to how responsible they are for the crash. 
Here’s how it works: if you get into an accident and are designated 20% of the fault, you must pay for 20% of the damage costs. The other driver has a responsibility to cover the remaining 80% of damages. 
The situations in which comparative negligence law is most commonly applied are personal injury lawsuits and third-party insurance claims (one driver filing a claim with the other driver’s insurance). For lawsuits, typically a judge will determine the respective percentages of blame. As far as insurance claims go, comparative negligence is used by insurance companies to assess the amount they’ll payout after an accident. 

Comparative negligence vs. contributory negligence

Comparative negligence practices vary depending on the state, but they all go by one of three versions of the law: pure comparative negligence, partial or modified comparative negligence, or contributory negligence. Let’s take a look:  
  • Pure comparative negligence: Anyone who is injured in a traffic accident is eligible for compensation relative to their percentage of the blame. 
  • Partial or modified negligence: An injured party may be compensated for damages in conjunction with their percentage of fault so long as they are considered to be less than 50 or 51% at fault (depending on the state). 
  • Contributory negligence: The injured party is not eligible for compensation if they are assigned any percentage of blame for the collision. 
In the majority of states, partial or modified comparative negligence is recognized. Pure comparative negligence is used in 12 states while contributory negligence is used in 5 states

What is Illinois’s comparative negligence law?

Illinois applies modified negligence law. That means that if you’re responsible for less than half of the fault in a traffic accident, you can be compensated for any sustained injuries after your percentage of fault has been deducted.

What happens if there are more than two responsible parties?

In some cases, an accident will involve multiple drivers. In this instance, you can file a claim with both driver's insurance companies. Compensation is granted based on the percentage of fault of each party.

How is fault decided in a comparative negligence case? 

After a car accident, insurance companies look at police reports and other available evidence such as photographs to determine levels of fault. If possible, do not leave the scene of the collision without gathering the following information: 
  • What makes and models of cars were involved
  • The date the accident took place and the time of day it occurred
  • The weather conditions at the time of the collision
  • Any witness statements 
  • Pictures of damage to the involved vehicles 
  • A copy of the police report if law enforcement was called to the scene

How does car insurance work with comparative negligence?

In Illinois, modified comparative negligence law permits you to make a claim against the other driver’s insurance as long your portion of fault is 50% or lower. 
Let’s take the following example: You’re driving in the right lane of the highway because your exit is coming up. You look down at the directions app on your phone to double-check your distance from the exit when a vehicle on your left enters the right-hand lane without signaling—clipping the front of your car. Later that day, you submit a claim against the other driver’s insurance company.  
After the insurance companies review your claim, it’s determined that the other driver struck your vehicle due to failure to use proper signaling. They are assigned 80% of the blame by the insurance company. You are given 20% of the blame because you didn’t see the oncoming vehicle due to
distracted driving
With the modified comparative negligence standard applied, you can collect 80% of the damages from the other driver’s insurance policy. If it costs $900 to repair your vehicle, the other driver’s insurance provider will cover up to $720 and it’ll be up to you to pay the balance. Due to the other driver’s portion of blame being 80%, comparative negligence law prohibits them from bringing a claim against your insurance company. 
MORE: The five main reasons a car accident insurance claim is denied

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This is a very unlucky scenario but it does happen. There are a few options when it comes to dealing with an uninsured at-fault motorist. 
First and foremost, document the accident by filing a police report. If you have uninsured motorist protection as part of your insurance coverage, file a claim with your insurance company. You may also file an insurance claim under the collision portion of your policy but this won’t cover any incurred medical expenses.
You can also choose to file a lawsuit. This is usually only advised if you’re almost certain you’ll win the case in small claims court.
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