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Posted in Personal Injury on July 21, 2022   |  by Gary Burger

Comparative Negligence in Personal Injury Claims

Comparative Negligence in Personal Injury Claims. Being injured through somebody else's negligence is already traumatizing and upsetting. When the person responsible for your injuries tries to blame everything on you, or an insurance company says they don't have to pay because you were partially at fault, it can be especially infuriating. While trying to pin the blame on you is a common trick insurance companies use to avoid paying claims, there are times when maybe we made a mistake, and weren't entirely blameless for our injuries. We get a lot of phone calls and emails from people asking if they can still make a recovery in that situation. The answer is yes. At Burger Law, our personal injury lawyers serve the injured throughout Missouri and Illinois, and we always answer questions for free. Call us today at (314) 500-HURT or fill out our online form to let us know how we can help you.

If you were injured because of somebody else's negligence, see how much your claim may be worth by using our free personal injury calculator.

Contributory Negligence vs. Comparative Negligence

While they sound similar, contributory negligence and comparative negligence — also called comparative fault — are two entirely separate ways of dealing with a personal injury claim when both parties at least somewhat are at fault:

  1. Contributory Negligence —

    Contributory negligence completely bars a plaintiff (you, the injured party) from any form of recovery if they are found to be even one percent to blame for their injury. It's based on the misguided notion that juries are over-sympathetic to plaintiffs. At Burger Law, our personal injury lawyers do not agree with that. We think jury members usually do a great job of being fair and impartial.

    The concept first appeared in an 1809 case in England, Butterfield v. Forrester. The defendant had placed a pole across part of the road to make some repairs to his house. Witnesses said there was enough light to see the pole within 100 yards. The plaintiff was riding his horse very fast, hit the pole, was thrown from his horse and sustained serious injuries. The court ruled that, even though the defendant was negligent in placing the pole on the road, the plaintiff could not receive compensation because they did not use ordinary care. The ruling was unjust because the plaintiff could not recover damages even though the accident was clearly caused by the defendant.

    As every state in the U.S. except Louisiana follows English Common Law, contributory negligence was adopted in America as well.

  2. Comparative Negligence —

    Comparative negligence was first adopted in the United States when Congress passed the Federal Employers Liability Act in 1908. It allowed for railroad workers to make a recovery if they were injured when engaged in interstate commerce, even if they were partially at fault. But, their compensation would be reduced by the proportion of fault they share for the accident. States and territories then began adopting the principle of comparative negligence over the next few decades.

    For example, in Missouri, the courts have found that if someone else causes a car accident and injures you, but you are not wearing a seatbelt, you can only be found to be one percent responsible for your injuries, due to not following the ordinary care of wearing a seatbelt. In comparative negligence, that means you would still recover 99 percent, or nearly all, of the compensation you need to recover. In contributory negligence, you would not receive a dime.

Comparative Negligence Laws in Illinois and Missouri

The good news is that both Missouri and Illinois follow a form of comparative negligence, as have 44 other states, the federal government and several territories.

In Missouri, Revised Statute §537.060 stipulates that each tortfeasor, or wrongdoer, is responsible for the portion of damages they caused. Missouri Revised Statute §537.765 goes further and abolishes "contributory fault as complete bar to plaintiff's recovery." In Missouri, even if you are 99 percent responsible for the accident, you can still receive one percent of your total damages. This is referred to as "pure comparative fault."

In Illinois, 735 ILCS 5/2-1116 also allows you to collect compensation if you were partially at fault. However, it also stipulates that you are barred from recovery if you are more than 50 percent at fault. So, if the incident is found to be mostly your fault, you will not receive compensation. This is known as "modified comparative fault," and is what most other states follow.

Comparative Negligence in Action

Comparative negligence can apply to a lot of types of injury claims. Say you were a pedestrian hit by a speeding motorist after you failed to look both ways. Or say you were injured in a slip and fall while running in a parking lot and slipped on a patch of ice the property owner should have repaired or warned about. Maybe, in a product liability claim, you did not use the product as intended, but the manufacturer failed to warn about how dangerous the product could be if used inappropriately.

In any of those cases, a jury or mediator may find that you sustained $100,000 in total damages, but were 30 percent at fault. You would receive compensation for the part of the accident you were not responsible for, which in this case would be $70,000.

Every case is different, so it's important to speak to a qualified personal injury attorney about your case, even if you know you were partially at fault.

Comparative Negligence in Personal Injury Claims | Burger Law

It is important to remember that the insurance company is not on your side; if they tell you that they cannot compensate you because the accident was your fault, they may very well be lying. Always speak to a lawyer before accepting a settlement offer or accepting blame. Burger Law's personal injury lawyers discuss people's cases with them for free every day. With offices in St. Louis, Chicago, Chesterfield, MO and Bellville, IL, we are well-suited to defend the rights of the injured throughout Missouri and Illinois. Call us today at (314) 500-HURT or contact us online for a free case review.