Car accidents are rarely black and white. You might have been going a few miles over the speed limit when another driver blew through a red light and hit you. Or maybe you were changing lanes without signaling when a distracted driver rear-ended you.
In Illinois, sharing some fault for your accident does not automatically destroy your right to compensation. But it does reduce it. Understanding how Illinois comparative fault works is essential for anyone involved in a car accident where both drivers may have contributed to the crash.
Illinois Modified Comparative Fault Rule
Illinois follows a modified comparative fault system under 735 ILCS 5/2-1116. The key rules are straightforward:
You can recover compensation if you are 50% or less at fault. Your award is reduced by your percentage of fault.
You cannot recover anything if you are 51% or more at fault. This is the “51% bar” that distinguishes Illinois from states that allow recovery regardless of fault percentage.
How the Math Works
Example 1: You are found 20% at fault and the other driver is 80% at fault. Your total damages are $100,000. Your compensation is reduced by 20%, so you receive $80,000.
Example 2: You are found 45% at fault and the other driver is 55% at fault. Your total damages are $200,000. Reduced by 45%, you receive $110,000. You still recover because you are under the 51% threshold.
Example 3: You are found 51% at fault. You receive nothing, regardless of how severe your injuries are or how large your damages are. The 51% bar is absolute.
This makes the difference between 50% and 51% fault worth tens or hundreds of thousands of dollars. A single percentage point can be the difference between full recovery (minus your share) and zero recovery.
Who Decides Fault Percentages?
Insurance Companies
During the claims process, insurance adjusters from both sides investigate the accident and assign fault percentages. They review the police report, statements from both drivers, witness accounts, photos, and any available video evidence.
The problem is that each insurance company has a financial incentive to shift fault toward the other driver. The at-fault driver’s insurer wants to minimize what they pay. Your insurer may also look for ways to reduce their exposure.
Insurance fault determinations are not final. They are starting positions for negotiation. You are not required to accept the fault percentage assigned by any insurance company.
Juries
If your case goes to trial, the jury decides each driver’s fault percentage. The judge instructs the jury on Illinois comparative fault law, and the jury assigns percentages based on the evidence presented.
Jury decisions on fault are often unpredictable, which is why most cases settle before trial. But the possibility of a jury trial gives both sides motivation to negotiate fairly.
Arbitrators
Some cases, particularly those involving uninsured or underinsured motorist claims, go to arbitration. The arbitration panel evaluates the evidence and assigns fault percentages, similar to a jury.
Common Scenarios Where Both Drivers Share Fault
Speeding Plus Another Violation
You were driving 10 mph over the speed limit when another driver ran a stop sign and hit you. The other driver clearly violated a traffic law, but your speed reduced your ability to stop in time and increased the severity of the collision. You might be found 15-25% at fault for speeding.
Distraction Plus Aggressive Driving
You glanced at your phone for a moment when another driver made an aggressive lane change without signaling and sideswiped you. Both drivers were negligent. The lane-changer may bear more fault (60-70%), but your phone use contributed to the crash (30-40%).
Left Turn vs. Speeding
A driver making a left turn has a duty to yield to oncoming traffic. But oncoming traffic has a duty to obey the speed limit. If the left-turning driver misjudged a gap because the oncoming car was speeding significantly, fault may be split. The left-turner might be 60% at fault for failing to yield, while the speeder is 40% at fault for going too fast.
Rear-End with Brake Light Issues
Rear-end collisions usually put fault on the following driver. But if the lead vehicle had broken brake lights, making it impossible to see that they were stopping, the lead driver may share fault. A split of 70-30 (following driver taking more fault) is common in these situations.
Chain Reaction Crashes
In multi-vehicle pileups on Chicago highways, fault gets distributed among multiple drivers. The initial cause of the chain reaction bears the most fault, but following drivers who were too close or not paying attention share responsibility.
How Insurance Companies Try to Shift Fault to You
Insurance adjusters are trained to find ways to increase your fault percentage because every point of fault they can add saves their client money. Common tactics include:
Recorded statements. The other driver’s insurer calls you shortly after the accident and asks for a recorded statement. They ask carefully worded questions designed to get you to admit fault or minimize the other driver’s negligence. Anything you say can be used to argue you were more at fault.
Social media monitoring. Adjusters check your social media for posts, photos, or check-ins that contradict your version of events. A post about going out the night before the accident might be used to suggest fatigue. A photo at a gym might be used to argue your injuries are not severe.
Selective use of the police report. If the police report contains any note suggesting you contributed to the accident, the adjuster will highlight it. If the report is favorable to you, they will argue that police reports are unreliable and based on limited investigation.
Mechanical inspection. They may inspect your vehicle for worn tires, broken lights, or other maintenance issues that could have contributed to the accident.
Witness shopping. Adjusters interview witnesses looking for anyone whose account supports their version of events.
How to Protect Your Fault Percentage
Do Not Admit Fault at the Scene
The most common mistake. “I’m sorry” or “I didn’t see you” or “Maybe I was going a little fast” are statements that will be used against you. Stick to the facts when speaking with police and the other driver.
Do Not Give a Recorded Statement Without a Lawyer
Politely decline when the other driver’s insurance company asks for a recorded statement. You are not required to give one. Tell them you will cooperate through your attorney.
Get a Police Report
Call police to the scene and make sure the report accurately reflects what happened. If you believe the report contains errors, you can provide a supplemental statement.
Gather Evidence
Photos, dashcam footage, witness contact information, and physical evidence from the scene all support your version of events. The more evidence you have, the harder it is for the other side to inflate your fault percentage.
Get Medical Treatment Immediately
Seeking prompt medical care documents that you were injured and creates a connection between the accident and your injuries. Delays in treatment give the other side ammunition to argue your injuries are not related to the crash.
Hire a Car Accident Lawyer
An experienced attorney knows how to counter fault-shifting tactics. They can:
- Investigate the accident to build the strongest possible case for the other driver’s negligence
- Hire accident reconstruction experts when needed
- Counter the insurance company’s evidence with their own investigation
- Negotiate against unfair fault percentages
- Present the case to a jury if the insurance company will not offer fair compensation
The Financial Impact of Fault Percentages
The difference in fault percentage directly impacts your compensation. Here is what the numbers look like on a $200,000 claim:
| Your Fault % | Other Driver’s Fault % | Your Recovery |
|---|---|---|
| 0% | 100% | $200,000 |
| 10% | 90% | $180,000 |
| 20% | 80% | $160,000 |
| 30% | 70% | $140,000 |
| 40% | 60% | $120,000 |
| 50% | 50% | $100,000 |
| 51% | 49% | $0 |
That last row is the cliff. Going from 50% to 51% is not a $2,000 difference. It is a $100,000 difference. This is why fighting over fault percentages is one of the most important parts of any shared-fault car accident case in Illinois.
Talk to a Chicago Car Accident Lawyer
If you were in a car accident where both drivers may share fault, do not assume you cannot recover compensation. The attorneys at Phillips Law Offices can investigate the accident, fight against inflated fault percentages, and maximize your recovery under Illinois comparative fault law.
Call (312) 346-4262 or contact us online for a free consultation.
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