In Illinois, comparative fault has been used as a legal doctrine in negligence actions since 1977. In 1978, the Illinois legislature codified the Contribution Act, but it wasn’t until 1981 when the theory of pure comparative negligence was used in assessing the plaintiff’s contribution to an underlying claim in the case of Alvis v. Ribar. In 1986, the final changes to the system of comparative fault were codified.

The theory behind adopting comparative negligence is for every party to have the opportunity to take responsibility if they contributed to an accident or injury. Under current law in Illinois, a plaintiff is barred from recovery if they are more than fifty percent of the proximate cause for an accident or injury. In a given case, the actions of the plaintiff are compared to those of the defendants on a percentage basis. Even if a party has settled, they are included in the calculation for the purpose of determining the fairest monetary contribution of every party involved in the injury. Children under age seven do not have their negligence compared to a defendant.

Illinois has also made a distinction in the defendant’s conduct and under what instances it can be compared to the conduct of the plaintiff. In some circumstances, a defendant may have engaged in negligence that was wanton and willful and it seems unfair to have that conduct compared to the “ordinary” negligence of a plaintiff. Illinois courts have decided that when the wanton behavior was “intentional” as opposed to just “reckless” a defendant was not able to take advantage of the comparative negligence against the plaintiff.

Illinois also provides for contribution among the defendants to prevent one defendant from paying more than their comparative negligence percentage in damages. This is in situations where there are several defendants that contributed to the negligence action of a plaintiff. One defendant is allowed to recover money paid in damages from the other defendants. In these instances, the percentage of fault found in court will determine whether a defendant had overpaid.

In some instances, there are successive injuries that create an issue of one defendant needing to be set off from a damage award amount. For instance, a plaintiff may have injuries from a car accident and then have a subsequent medical malpractice claim for negligent treatment. The initial defendant may be liable for both injuries and the subsequent defendant is only liable for the subsequent injury. This will depend on whether the injuries can be separated or if they are too connected and must be considered as one injury. A successive defendant may have his damage amount reduced, or set off, depending on the award offered by the previous defendant.

This article is for informational purposes only and is not to be construed as legal advice. Your case may be different. Consult an attorney in your area for further guidance. If you were injured on the premises of another, please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.