Contributory fault is a legal theory that assigns damages based on a person’s fault for causing an accident or injury. Insurance companies often use contributory fault to undervalue the value of a personal injury claim by blaming the injured victim. The result is a lower personal injury recovery.
How Do You Prove Fault for a Personal Injury Claim?
Most personal injury claims are based on negligence. Negligence occurs when a party fails to exercise the same level of care that an ordinary person of reasonable prudence would use in the same situation.
Creating liability for damages requires the injured party to prove the following legal elements to establish fault:
- The party who caused your injury owed you a legal duty of care
- That party breached their legal duty of care through their actions or inactions
- The party’s breach of duty was the direct and proximate cause of your injuries
- You sustained damages because of the party’s breach of duty
For example, Illinois drivers have a duty of care to operate their motor vehicles safely to avoid causing car accidents. In other words, they must follow traffic laws and avoid dangerous driving behaviors such as distracted driving, speeding, and drunk driving.
A driver breaches their duty of care when they engage in reckless driving behaviors or break the law. For instance, a reasonably prudent person would know that texting while driving or tailgating increases the risk of causing an accident.
Causation requires that you prove the driver’s actions caused the car crash. Lastly, you must prove that you sustained damages. Damages in a personal injury case can include physical injuries and non-economic damages, including emotional distress and loss of enjoyment of life. Damages include economic damages, such as out-of-pocket expenses, medical bills, and loss of income.
If you prove all legal elements required to establish fault and liability, the person who caused your injury is liable for your damages. Typically, if there is insurance coverage, the insurance company pays the claim. However, you can also file a lawsuit against the party seeking a personal judgment.
What if You Are Partially to Blame for the Cause of Your Injury or Accident?
Comparative fault divides damages among the parties of a claim by their level of fault. A few states have comparative fault laws that completely bar an accident victim from receiving any money for damages if they are even 1% at fault for the cause of their injuries.
Fortunately, Illinois is not one of those states. Instead, Illinois adopted a modified comparative law.
Under Illinois law, an injured party can recover compensation for damages if they are less than 51% at fault for the cause of their injuries. However, if they are 51% or more at fault for the cause of their injuries, they cannot recover any money for their damages.
Suppose that you slip and fall in a store. A jury awards you $300,000 for damages. However, the jurors find that you are 35% to blame for the cause of your injury.
In that case, you would receive a total of $195,000 for your case. The compensation is based on total damages of $300,000 less 35% ($105,000) for your contribution to the cause of the injury.
On the other hand, suppose the jury finds that you were 55% at fault. In that case, you would receive no money for your personal injury claim.
How Can You Protect Yourself Against Allegations of Contributory Fault?
Insurance companies use any means they can think of to avoid paying the full value of a claim. Therefore, injured parties need to take steps to protect their right to fair compensation for all damages.
Steps you can take to protect yourself against allegations of contributory fault include:
- Never admit fault for the cause of an accident or injury, including apologizing or saying you are sorry. You cannot know whether you are to blame until the investigation is completed.
- Document the accident scene by taking photographs and making a video with your cell phone.
- Ask eyewitnesses and bystanders for their names and contact information.
- Make a mental note of any traffic cameras or surveillance cameras that could have caught the accident on video.
- Do not talk to an insurance adjuster or investigator before talking with a lawyer. Never agree to provide a written or recorded statement.
- Do not discuss the accident with anyone other than your lawyer, including posting information on social media.
As soon as possible, contact our office to schedule a free case evaluation with one of our accident attorneys. The sooner you have legal advice, the better for your case.
Contact Us for a Free Consultation With our Naperville Personal Injury Lawyers
Don’t let an insurance company shift the blame for your injury to you. Instead, contact the Law Offices of Mathys & Schneid at (630) 428-4040 to schedule a free consultation with one of our experienced Naperville personal injury attorneys.
Having an experienced attorney represent you can help you avoid mistakes that could lead to allegations of contributory fault.