Overview Of Comparative Negligence

When a defendant is named in a personal injury claim it is on the basis that the

defendant was negligent in some manner, which resulted in harm or injury. Negligent actions, such as carelessness or recklessness, can lead to the defendant being held legally liable for damages.

Proof of Negligence in a Personal Injury Claim

There must be proof of negligence in a personal injury claim to collect damages. If negligence cannot be demonstrated an injured party may be unable to receive any type of compensation.

Proof of negligence in a personal injury claim is done by demonstrating the following:

defendant owed a legal duty of care to the plaintiff;

through an action or a failure to act, the defendant breached their legal duty of care;

the plaintiff was injured or harmed; and

the injuries to the plaintiff were the direct result of the defendant's breach of legal duty.

Contributory Negligence versus Comparative Negligence

In establishing awards for damages each state follows either contributory negligence or comparative negligence rules.

Contributory negligence will not allow for any damages to be awarded to an injured party if they were at fault in any way for their accident. Even if an individual is found to be just 5% at fault, they would be unable to recover any damages.

With comparative negligence, even if an injured party was partly at fault for the accident they can still recover some damages. However, there are different types of comparative negligence that only allow for a certain percentage of fault by the plaintiff to recover compensation.

Pure Comparative Negligence

Presently there are 13 states that follow pure comparative negligence. With these rules a plaintiff can be 99% at fault for an accident yet still collect some amount of damages. However the amount of compensation they can receive in damages will be reduced by their percentage of fault. So if an injured party were found to be 99% at fault for the accident, their damages would be reduced by 99%.

Modified Comparative Negligence

There are 33 states that follow some form of modified comparative negligence. There are two types of modified comparative negligence. One is the 50% rule where an injured party can only recover damages if their fault in the accident was 49% or less.

The other type of comparative negligence is the 51% rule where an injured party can only collect damages if their fault was 50% or less. The state of Illinois follows the modified comparative negligence - 51% rule.

If you have been involved in an accident in Illinois, you may want to work with an experienced Chicago personal injury attorney who can help defend your interest in a personal injury claim and explain how Illinois's comparative negligence may affect your potential settlement.

Copyright (c) 2010 Barry D

by: Barry D

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