- Illinois uses modified comparative negligence (735 ILCS 5/2-1116).
- You can recover if you were 50% or less at fault. Your award is reduced by your share of fault.
- If you are found more than 50% at fault, you recover nothing.
- Insurers routinely inflate your share of the blame, so evidence gathered early matters.
One of the most common things injured people tell us is, “I’m not sure I have a case, because it was partly my fault.” Maybe you were a few miles over the limit, looking at your phone in a parking lot, or walking across a store aisle without noticing a spill. In Illinois, being partly at fault usually does not end your claim. It changes the math.
What is modified comparative negligence?
Illinois follows a system called modified comparative negligence, set out in 735 ILCS 5/2-1116. A jury (or the parties, in a settlement) assigns a percentage of fault to everyone whose conduct caused the injury, including the injured person. Your compensation is then reduced by your percentage of fault, as long as that percentage is not more than 50%.
The math, in plain numbers
- Total damages of $100,000 and you are 0% at fault: you recover $100,000.
- Total damages of $100,000 and you are 20% at fault: you recover $80,000.
- Total damages of $100,000 and you are 50% at fault: you recover $50,000.
- Total damages of $100,000 and you are 51% at fault: you recover $0.
That last line is why this rule is sometimes called the “51% bar.” The difference between 50% and 51% is the difference between a recovery and nothing, which is exactly why insurance companies fight so hard over fault percentages.
How fault actually gets assigned
Fault is not a formula. It is decided from evidence: police reports, photos, surveillance and dash-cam video, vehicle data, witness statements, expert reconstruction and, in premises cases, inspection and maintenance records. The side with better evidence usually wins the fault argument.
- Car and truck crashes: speed, following distance, signal timing, phone records and electronic logging or vehicle data.
- Slip-and-falls: how long the hazard existed, whether staff knew about it, lighting, warning signs and footwear.
- Construction and workplace injuries: safety plans, OSHA rules, who controlled the work and the equipment involved.
How insurance companies use comparative fault against you
Adjusters know that every percentage point of fault they assign to you lowers what they pay. Expect questions designed to get you to admit you were distracted, rushing or “should have seen it.” A recorded statement given in the first days after an injury, before you understand the evidence, is one of the most common ways people talk themselves into a higher fault percentage.
That is why we recommend speaking with a lawyer before you give any statement. Our guide on what to do after a car accident in Chicago covers how to protect yourself in the first days.
What about multiple defendants?
When more than one party caused the injury, such as two drivers, or a contractor and a property owner, fault is divided among all of them. Under 735 ILCS 5/2-1117, every defendant found at fault is jointly and severally liable for the injured person’s medical expenses. For other damages, a defendant whose fault is less than 25% of the total is generally responsible only for its own share. Identifying every responsible party can make a significant difference in what is actually collectible.
Missouri works differently
If your injury happened in Missouri, the rules are more forgiving: Missouri uses pure comparative fault, so you can recover even if you were more than half responsible, reduced by your share. We compare the two states in Missouri vs. Illinois personal injury law.
How Tober Law handles shared-fault cases
Shared-fault cases are won with early investigation. Cam Tober personally handles each case, preserving video, getting the vehicle or scene data and identifying every party who contributed, so the fault argument is built on evidence rather than the insurer’s version of events. If you think you may have been partly to blame, talk to us before you decide you don’t have a case.
Frequently asked questions
Can I recover damages if I was partly at fault in Illinois?
Yes, if you were 50% or less at fault. Illinois reduces your compensation by your percentage of fault and bars recovery only if you were more than 50% responsible (735 ILCS 5/2-1116).
Who decides what percentage of fault I have?
In a trial, the jury decides. In settlement negotiations, the percentages are argued by the parties based on the evidence, which is why gathering photos, video, data and witness statements early is so important.
Does a traffic ticket mean I was at fault?
Not necessarily. A citation is evidence, but it does not automatically decide civil fault, and in many cases a traffic ticket is not even admissible at a civil trial. Other evidence can show the other party was primarily responsible.
If I was partly at fault, should I still talk to a lawyer?
Yes. Many people who assume they were mostly at fault learn the evidence shows otherwise. A free consultation can tell you whether you have a viable claim.
Written by
Cameron J. ToberFounder & trial lawyer at Tober Law. Handles catastrophic injury and civil rights cases across Illinois and Missouri, including appeals to the Illinois Supreme Court.
This article is general information about Illinois law and is not legal advice. Every case is different; prior results do not guarantee a similar outcome. Reading this page does not create an attorney-client relationship.
