Comparative Fault Drunk Driving Accident Illinois: 3 Facts

Last Updated: October 24, 2026

In a negligence action for a drunk driving crash, 735 ILCS 5/2-1116 bars recovery when the plaintiff’s contributory fault is more than 50% of the proximate cause of the injury. When that contributory fault is not more than 50% of the proximate cause, the damages are reduced in proportion to the plaintiff’s fault.

You would think comparative fault would not be an issue when a drunk driver crashes into you. The driver was intoxicated, broke the law, and caused the accident. But insurance companies will still look for ways to assign you a share of the fault, and under 735 ILCS 5/2-1116, recovery is barred when contributory fault is more than 50% of the proximate cause of the injury.

This article is part of our complete guide to drunk driving accident claims in Illinois.

How Illinois Comparative Fault Works

Illinois follows modified comparative fault under 735 ILCS 5/2-1116. If contributory fault is not more than 50% of the proximate cause of the injury, damages are reduced in proportion to that fault. A finding of exactly 50% does not bar recovery. Contributory fault of more than 50% of the proximate cause bars recovery.

Section 2-1116 does not assign the intoxicated driver a fixed share of the proximate cause. The trier of fact makes that finding.

Common Comparative Fault Arguments in DUI Cases

Defense attorneys and insurance adjusters may argue:

You were speeding. Even a few miles over the limit can be used to argue you contributed to the severity of the crash.
You ran a red light or stop sign. If you entered an intersection unlawfully, the defense may argue the crash would not have occurred regardless of the driver’s intoxication.
You were distracted. Texting, adjusting GPS, or looking at a passenger, any distraction can be used against you.
You failed to avoid the collision. The argument that a more alert driver could have swerved or braked in time.
You were also intoxicated. If you were drinking too, the defense will raise a comparative fault argument.
You were a voluntary passenger. If you knowingly rode with a drunk driver, the defense may argue that choice is contributory fault.

No Fixed Percentage for a Passenger or an Intoxicated Person

Section 2-1116 does not set a percentage for a passenger who rode with a driver the passenger knew was intoxicated, and it does not set a percentage for a person who was also intoxicated. Any reduction is the contributory fault found by the trier of fact, measured as a share of the proximate cause.

Protecting Yourself from Comparative Fault Arguments

The best defense against comparative fault is evidence. Photos of the scene, the police report, witness statements, and your own actions immediately after the crash all contribute to showing you were driving safely and acting responsibly. Do not admit fault at the scene. Do not speculate about what you could have done differently. Let the evidence speak for itself.

Frequently Asked Questions

Can I still recover damages if I was partially at fault in a drunk driving accident?

Yes, when contributory fault is not more than 50% of the proximate cause of the injury. Under 735 ILCS 5/2-1116, damages are reduced in proportion to that fault. A 10% finding on $500,000 of damages leaves $450,000. That figure is an illustration of the statute, not a prediction of a result.

What if the insurance company says I was 50% at fault?

A finding of exactly 50% of the proximate cause does not bar recovery, and the damages are reduced in that proportion. Recovery is barred when contributory fault is more than 50% of the proximate cause. The statute does not assign the intoxicated driver a fixed share.

Does riding as a passenger with a drunk driver count as comparative fault?

The defense may argue that a passenger who knew the driver was intoxicated and chose to ride is chargeable with contributory fault. Section 2-1116 reduces damages when that fault is not more than 50% of the proximate cause. It bars recovery when that fault is more than 50% of the proximate cause.

Talk to a Peoria Personal Injury Lawyer

Call 309-673-0069 or contact us online for a free consultation. At Parker & Parker Attorneys at Law, we handle personal injury cases on a contingency fee basis, you pay nothing unless we recover compensation for you.

If you or a loved one has been injured in a car accident, Peoria personal injury lawyer Robert Parker can help document the claim, evaluate available coverage, and prepare the case for settlement or litigation.

Need a lawyer? This article is part of our Peoria Car Accident Lawyer practice area. Call Parker & Parker at 309-673-0069 for a free consultation.

Comparative Fault in Illinois Drunk Driving Accident Cases