There are many instances in which more than one person’s negligence is responsible for an accident that results in physical injury or death. But what if the victim’s own careless actions were partly to blame? Can he or she still recover damages? In Illinois, the answer is “maybe”.
The Old Rule – Contributory Negligence
The concept of contributory negligence comes from the English common law and by the mid-1800s had been adopted in Illinois and most other states. It applies when the plaintiff’s own failure to use reasonable care was a cause of his or her injury, even if a third party was also at fault. Under this rule, a finding that the plaintiff was negligent – even if only slightly – had harsh consequences: it completely barred any recovery from others who were negligent, even if to a much greater extent than was the plaintiff.
Throughout the twentieth century, the Illinois General Assembly and courts carved out a number of exceptions. For example, a child younger than seven could not be found to have been contributorily negligent. However, the rule was still strictly applied in most cases and frustrated the efforts of Chicago Personal Injury Attorneys to recover for otherwise deserving plaintiffs their medical expenses, lost wages and other damages while allowing seriously negligent defendants to escape financial responsibility. To make matters more difficult, the plaintiff was required to prove both that the defendant was negligent and that he or she was completely without fault.
The Modern Rule – Comparative Fault
In 1981, the Illinois Supreme Court concluded that the rule of contributory negligence was outmoded and unfair. It abolished the rule and replaced it with the doctrine of comparative fault. Under this system, a plaintiff’s damages were reduced by his degree of fault. A plaintiff found to have been ninety percent negligent could still collect from the defendant ten percent of his legally permitted damages.
Increasing insurance costs and public demands for reform led to the General Assembly’s 1986 adoption of a modified system of comparative fault. Now, a plaintiff who was also at fault may only recover damages if his negligence is found to have been less than half the cause of the injury. That same year, the Supreme Court also shifted to the defendant the burden of proving a plaintiff’s negligence.
