In a personal injury lawsuit, a plaintiff claims that the defendant caused some bodily injury to the plaintiff. In turn, the defendant will often claim that the plaintiff is at fault for his own injury—or at least part of it. The parties play this blame game because it can mean a greater or lesser recovery for the plaintiff and a greater or lesser hit to the defendant’s pocketbook. The legal significance of the blame game in personal injury lawsuits has changed over time. This post summarizes how different states, including our own state of Illinois, deal with these contradictory claims of fault. 

The Old Method: Contributory Negligence

Historically, if a plaintiff was in any way at fault in causing his or her own injury, then the plaintiff couldn’t recover any amount from another person. In other words, even if somebody else was 99% at fault in causing a plaintiff’s injury, the plaintiff’s 1% fault was enough to bar recovering anything. Today, only a few U.S. jurisdictions still apply this contributory negligence rule. Other states have moved on, as explained below.

The New Method: Comparative Fault

During the 20^th century, states began to recognize how unfair the old system was, and began enacting alternative systems that allowed recovery on more claims. These systems still required the plaintiff’s own fault to be compared with the fault of others, but allowed a greater degree of fault by the plaintiff before recovery would be barred. This threshold is different in different states, but most use one of the following three alternatives:

1. 50% Comparative Fault: Some states bar a plaintiff’s recovery only if the plaintiff is 50% or more at fault for his own injuries. If the plaintiff is less than 50% at fault, he or she can recover from any other party that is also at fault, but only to the extent of that party’s fault. For instance, if a plaintiff is found to have suffered $100,000 in damages, but is found 49% at fault, the plaintiff can only recover for the $51,000 in damages not attributable to his or her own fault.
2. 51% Comparative Fault: Other states, including Illinois, use a slightly different system. These states allow a plaintiff to recover so long as he or she is not 51% or more at fault for his or her injuries. In other words, the plaintiff can recover even if he or she is just as much at fault for his or her injuries as the defendant. But, as in states that use the 50%-comparative-fault bar, the plaintiff’s recovery is reduced to the extent of his or her fault. So, to take the example used above, the plaintiff would still be limited to recovering $51,000 in damages. The difference is that the plaintiff in a 51%-comparative-fault state would still recover $50,000 even if he or she was 50% at fault, whereas he or she would take nothing in a 50%-comparative-fault state in such circumstances.
3. 100% Comparative Fault: Still other states employ an even higher threshold, barring a plaintiff’s recovery only if the plaintiff is 100% at fault. If the plaintiff is 99% at fault or less, he or she can recover from the defendant. But, as in other comparative-fault states, the recovery will be reduced by the plaintiff’s percentage of fault.

Determining Fault

With that background in mind, who determines fault? And how do they do it? Ultimately, the fact-finder at trial will determine each party’s fault in causing the plaintiff’s injuries. In the popular conception of a trial, that means the jury, though judges can also serve as fact-finders if the parties agree to it. To decide who bears how much fault in a case, the fact-finder will look to the evidence presented in the case. There’s no bright-line rule that tells a fact-finder how to determine a party’s fault in a case. That decision is an exercise of the fact-finder’s discretion.

But the fact-finder at trial is not alone in considering fault. A plaintiff’s lawyer will try to determine his or her client’s comparative fault to decide whether the plaintiff has any chance of prevailing. A defendant’s attorney—and any insurance company that might be on the hook—will also investigate a plaintiff’s fault in causing his or her own injuries, so that the plaintiff’s fault can be raised as a defense or used to justify a lower settlement offer. This is why you need Costa Ivone, LLC, the best personal-injury lawyers, by your side if you get injured because of someone else’s wrongdoing. They can help you navigate the process of litigating personal injury claims while minimizing the cut that the blame game takes out of your settlement or trial proceeds. Please contact us today to set up a free initial consultation.