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How are negligence and compensation determined in a car accident case?

November 12, 2020

The difference between comparative and contributory negligence

To understand the difference between comparative and contributory negligence, we must first establish the definition of negligence. Negligence is an action, or omission to act, that results in someone else’s injury or death. Distracted driving is an example of negligence. While a distracted driver may not intentionally cause a crash, he or she chose to use a cellphone while driving. This negligent action is what led to someone else’s injuries. Negligence also applies when a driver fails to take reasonable action to prevent a crash. This includes reducing speed or failing to take evasive measures in the event of an impending crash.

Comparative negligence explained

Comparative negligence factors into the action of both drivers to determine who was at fault. Fault can be contributed by both drivers. Here is an example of how comparative negligence works:

Driver A was distracted by his or her cellphone and runs a red light and is broadsided by driver B who was exceeding the posted speed limit. Had driver A not been using a cellphone, the crash could have been prevented entirely. However, driver B could have taken preventative measures by obeying the posted speed limit. In this case, both drivers contributed to the crash. Let’s say driver A is 75 percent at fault and driver B is 25 percent at fault.

Illinois follows the modified comparative negligence 51 percent rule. This means that a driver who is 51 percent or more at fault for a crash can’t recover damages. A driver who is 49 percent at fault or less can recover damages.

Contributory negligence explained

Contributory negligence determines if each driver contributed to fault in a crash. In the case of driver A and driver B, the driver who was primarily at fault may be able to pursue damages from the driver who contributed less fault to the crash. The amount of compensation recovered reduces by the amount of negligence the plaintiff contributed to a crash.

This is known as pure contributory negligence. The only states that adopt this rule are Alabama, Maryland, North Carolina and Virginia.

Proving negligence takes an in-depth investigation

When a driver’s negligence leads to a crash, he or she might admit fault at the scene of the crash. In some cases, an at-fault driver will deny fault. Either way, the insurance company that represents the at-fault driver will likely try to shift the blame onto you. In Illinois, there is a burden of proof when negotiating a complete settlement. If you speak to the other driver’s insurance company without first consulting with an attorney, you may unknowingly admit to fault or fail to prove negligence on behalf of the other driver.

That’s why it’s critical that you speak to an experienced Chicago car accident attorney who knows how to gather the indisputable facts. An in-depth investigation may reveal that the driver who hit you behaved in a negligent or reckless manner. For example:

  • Cellphone records prove that distracted driving occurred.
  • A DUI arrest (documented on the police report) proves that drunk driving occurred.
  • Dashcam, surveillance camera footage, or witness statements can prove that the other driver failed to yield the right-of-way or was driving erratically.
  • Tire marks in the road can prove that the other driver was speeding.

With the right evidence, it’s no longer your word against the other driver’s. Let the legal team at Coplan + Crane gather the facts and negotiate for a fair settlement on your behalf. We offer free and confidential case evaluations to our clients. Contact us online to find out how we can help you.