Breaking Down the Contributory Negligence Defense

In some ways, a negligence case is a lot like a college football game. The offense may have the most innovative play since “Cactus” Jack Neumeier developed the spread offense in 1970. But if the defense is in the right place at the right time, it is all for naught.

Similarly, a personal injury attorney may work for months or even longer building a claim for compensation. But if the insurance company lawyer has a defense, that claim could be in serious jeopardy.

One obvious difference is that the stakes are much higher in a negligence case than they are in a football game. For the most part, even hard-core fans quickly forget the most exhilarating wins. But a successful claim for compensation may positively impact a family for years to come.

What is Contributory Negligence in Illinois?

Quite simply, contributory negligence is a way to shift blame from the accident from the tortfeasor (negligent driver) to the victim.

Assume the tortfeasor tells emergency responders that she was using her cell phone at the time of the crash. She will probably receive a citation, and her insurance company will probably fault her for the collision. But if the victim made an illegal lane change, the insurance company can later argue that the lane change, and not distracted driving, caused the collision.

Various states have various rules. Illinois is a modified comparative fault state with a 51 percent bar. If the above hypothetical case goes to trial and the jury determines that the tortfeasor was 51 percent responsible, the victim would receive a proportional share of damages.

How Does It Work?

A personal injury attorney has basically two chances to maximize compensation in contributory negligence cases. An attorney usually has ample warning that the insurance company will use this defense, because most civil cases involve extensive pretrial discovery.

First, the insurance company must convince the judge that contributory negligence is an issue. Assume that instead of using her cell phone, the first driver was rolling down the window. Both cell phone use and rolling down the window technically constitute distracted driving. But most Winnebago County judges would not give the jury a contributory negligence instruction in these cases.

Next, the insurance company must convince the jury that the victim’s fault exceeded the tortfeasor’s fault. Many times, it is best to accentuate the positive in these cases. For example, an attorney could admit that the victim made an improper lane change. But if the victim was not speeding and was not driving erratically, it’s not likely that the lane change caused the car crash.

The damages in an Illinois car crash case usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages may also be available, in some cases.

Reach Out to Experienced Attorneys

Contributory negligence is one of the most common insurance company defenses. For a free consultation with an experienced personal injury lawyer in Rockford, contact Fisk & Monteleone, Ltd. We do not charge upfront legal fees in negligence cases.