31 Oct, 2023

Comparative Fault Vs Contributory Negligence: What’s the Difference?

Author Todd A. Strong
Close up lawyer businessman working or reading lawbook in office workplace. comparative fault vs contributory negligence
Close up lawyer businessman working or reading lawbook in office workplace. comparative fault vs contributory negligence

The key difference in comparative fault vs contributory negligence is your ability to claim damages if you share some portion of blame in an accident. Under comparative fault, your damages are reduced, whereas under contributory negligence you lose your ability to claim damages entirely.

In some accident cases, it is easy to determine who is responsible for the incident. However, in more complex cases, one or more parties may share the blame, including the plaintiff themselves. Understanding the negligence doctrine in your state is crucial in determining your claim, especially when multiple parties are involved. In Illinois, modified comparative negligence is the standard for recovering damages.

How Is Fault Determined in Accident Cases?

Whether it be a slip and fall, car accident, or medical malpractice case, proving fault can be a difficult task. To hold a person or entity accountable for your injuries, you need to establish who the responsible or liable party is.

Proving fault depends on the type of claim, but it typically involves demonstrating four elements of negligence. You need to show that the responsible party had a legal duty to avoid harming you. You will also need to show that the party breached that duty, that the breach directly caused you harm, and that you suffered losses as a result of that harm.

To establish fault, you will need satisfactory evidence for each of the elements required. Physical evidence and witnesses to the incident can be used to determine fault. Additionally, photographs, medical records, police records, or other documents can be used to prove fault. The determination of who is at fault can be made in various ways, depending on the evidence and legal proceedings involved. It can be decided on the road where the accident occurred, in a police report, by insurance companies, or in court by a jury.

At the Accident Scene

It is important to know what to do after a car accident in Illinois. After an accident, drivers have a tendency to assign blame while exchanging information. This behavior can be harmful, as sometimes drivers are overwhelmed or intimidated and end up taking the blame themselves. In the heat of the moment, either driver might admit to fault. For instance, a driver may confess to not noticing the stop sign. However, this strategy is not recommended, as it might have negative consequences if the case goes to court. If a driver is overly forthcoming, this can be used against the driver, assigning fault and thereafter holding him or her accountable for the accident.

At the accident scene, you should.

  • Take pictures of the vehicles involved in the accident before they are moved. Also, make a note of the names and phone numbers of those involved, including any witnesses.
  • Ask all the drivers involved to present their driver's licenses and insurance ID cards.
  • Ensure that you capture the make and model of all the cars that were involved in the accident.
  • Record the location of the accident, the time of day, and the weather conditions at the time.
  • If necessary, wait for the arrival of the police.

The Police Report

After an accident, the police will arrive on the scene to determine if anyone is injured and, if so, to call for medical assistance. Following this, the officer will assess the scene and take note of the damage to all vehicles involved. The officer will also observe the position of the vehicles. The police officer creates an accident report, containing details of the accident scene. This report can assist in determining who is at fault for the accident.

For instance, if one vehicle ran through a stop sign and hit another, or if one was rear-ended while stopped at a red light, it becomes clear who is at fault. In most cases, the officer will draw a diagram of the accident scene to assist with the report.

It's possible that the accident was caused by special circumstances, such as cell phone use, speeding, or driving under the influence (DUI). This is why the police officer should interview witnesses, including those who were in the vehicles involved in the accident. The officer will likely ask many of the same questions that would be asked in court, so it's important to have your story straight and not make any spontaneous admissions of guilt.

While a police report is not infallible, it is a public document that insurance companies will read, as should you when it becomes available. If there was no police officer at the scene, you can go to the nearest police station to file an incident report in person, or do so later online. Filing an official police report can be beneficial, especially if the other driver involved decides to sue you for damages or medical injuries, or if there is more damage to your vehicle than originally thought.

The Insurance Company

After all parties involved in the accident have filed their claims with their respective insurance companies, the insurers take over. The insurers then appoint an adjuster to investigate the accident, apportion fault, and determine the settlement of the insurance claim.

Similar to the police, the adjusters speak to all drivers and witnesses, scrutinize medical records, evaluate vehicle damage, and verify the coverage amounts of each driver. Ultimately, in an insurance claim, the adjusters come to a conclusion about who was at fault and pay or reject a claim based on their decision. Insurance companies usually determine liability based on their state's legal definition of negligence.

A Court or Jury

You may need to file a lawsuit to recover damages. The court will determine who was at fault, typically by deciding who was negligent.

When your case goes to trial, the judge or jury will listen to arguments from your lawyer and the defendant's lawyer, along with any evidence presented. Testimonies from witnesses will be part of the evidence presented. Witnesses may include:

  • Drivers
  • Witnesses
  • Police officers
  • Accident reconstruction specialists
  • Medical healthcare providers

The police report or any decision made by insurance adjudicators do not have sole impact on the final decision. Some evidence may not be admissible in court and precedents from prior cases can also play a role in determining fault.

Why a Fault Determination Is Important

Fault is a crucial notion in personal injury law, as it allows the victim to receive compensation for his or her injury in cases where another person is responsible for causing the accident or incident. In Illinois, the person who is at fault is held financially responsible for the harm suffered by others, usually through his or her insurance company.

In civil law, fault refers to the responsibility or blame that is attributed to an individual for his or her actions or omissions. It is typically associated with liability for harm or damage caused to another person or property. To establish liability, it is necessary to prove that the person who caused the harm was at fault, either through negligence or intentional wrongdoing.

Fault plays a vital role in determining legal responsibility and awarding damages or compensation. If fault can be established, the person who caused harm may be required to compensate the victim for his or her losses, such as medical expenses, lost income, and pain and suffering. Without fault, it would be difficult to identify who is responsible for the harm and to hold that person accountable.

What Is Comparative Fault?

Comparative fault states allow you to claim damages from an accident. However, if you are partially responsible for your injury, the amount of compensation you can receive will be reduced proportionally. This is often also referred to as comparative negligence. In personal injury cases, there are two types of comparative fault a state's laws may use:

Pure Comparative Fault

Using pure comparative fault, you can still recover compensation even if the defendant had only a small amount of responsibility for causing harm. For example, if the defendant was just 1% to blame for an accident, you could receive compensation for 1% of your losses.

Modified Comparative Fault

In this case, your damages are reduced proportionally to your percentage of blame. However, you will not receive compensation if you are found to be equally at fault or more responsible for the accident or incident. To collect damages, you must not be more than 50% at fault for the resulting injury.

Most states, including Illinois, use comparative fault to determine damages in a personal injury lawsuit.

How Does Comparative Fault Impact a Settlement?

Comparative fault reduces your claim against an at-fault person or party. When you file a claim for damages, the amount awarded to you may be reduced to reflect your contribution to the accident. For instance, if you are awarded $10,000, but the judge or jury finds that you are 25% at fault for the accident, your claim will be reduced by 25%, and you will be awarded $7,500.

The comparative fault doctrine is often used by defendants to reduce their liability in personal injury cases. For example, in a car accident, the defendant may argue that the plaintiff was using a cell phone and was partially responsible for the accident. If a jury decides that the plaintiff was 30% at fault, his or her damages would be reduced accordingly.

Assigning fault in such cases can be subjective, but previous cases can be consulted to arrive at an appropriate value. For instance, if a case similar to yours found the plaintiff 20% at fault for his or her injuries, you can expect similar figures. Your car accident attorney may help you to determine what a reasonable settlement is for a car accident if you were partly at fault.

What Is Contributory Negligence?

In legal terms, contributory negligence is a strict doctrine that states that if a plaintiff is even 1% responsible for his or her injury, he or she cannot claim any damages. Following the same legal procedure as mentioned above, a jury can find that the defendant was negligent once the plaintiff has proven his or her case. However, if the jury reviews all relevant evidence and finds that the plaintiff is even 1% responsible for his or her injury, the plaintiff will not receive any damages.

For instance, you may get hit by a speeding car at a crosswalk and the jury may award $100,000.00 to you. However, the jury may assign 5% responsibility to you for using the crosswalk when it was not giving the right of way to pedestrians. In this case, you will not receive any of the awarded settlement amount.

Only a few jurisdictions still follow the contributory negligence doctrine.

How Contributory Negligence Impacts Damages in an Accident Case

The principle of contributory negligence could cause you to lose your claim for damages entirely, leaving you to cover the costs of your accident.

When someone who has been injured files a negligence claim against another person, the defendant may respond by making a contributory negligence claim against the plaintiff. A contributory negligence claim happens where the defendant claims that the plaintiff's own actions also contributed to the accident. This is a common defense to negligence claims and is called a contributory negligence counterclaim.

If the defendant is able to prove that the plaintiff contributed to the accident in any way, no matter how slight, the plaintiff may not be able to recover any damages at all.

Key Differences Between Comparative Fault Vs Contributory Negligence

The main difference between contributory negligence and comparative fault is the ability of the victim to recover damages even if he or she shares fault for an accident. Contributory negligence means that if you are found to be even partially at fault, you are prevented from claiming damages. On the other hand, comparative fault allows you to still receive damages, but the amount is usually reduced by the percentage of your fault.

About The Author

Photo of Todd A. Strong
Illinois workers’ compensation and personal injury lawyer Todd A. Strong is the founder of Strong Law Offices in Peoria, Illinois. Todd brings considerable legal knowledge, experience, and skill to the table to ensure injured victims throughout the state are treated with respect, dignity, and fairness.