Comparative Fault Defenses in Illinois Premises Liability Cases

In almost every premises liability case, the property owner’s first line of defense is comparative fault — the argument that you were partially responsible for your own injuries. You should have watched where you were walking. You should have seen the hazard. You should have worn different shoes. You should have used the handrail. These arguments are predictable, and they work often enough that property owners and their insurers raise them in virtually every case.

This article is part of our complete guide to premises liability claims in Illinois.

How Modified Comparative Fault Works

Illinois follows modified comparative fault under 735 ILCS 5/2-1116. If you bear some fault for your injuries, your recovery is reduced by your percentage of fault. If your fault reaches 50% or more, you recover nothing. The 2025 amendment lowered this threshold from 51% to 50%.

Example: You slip on a wet floor in a store. The jury awards $200,000 in damages but finds you 20% at fault because you were looking at your phone. Your recovery is reduced to $160,000. If the jury found you 50% at fault, you would recover nothing.

Common Comparative Fault Arguments

Property owners and their insurers consistently raise these arguments:

• “You were not paying attention.” The argument that you were distracted — on your phone, looking elsewhere, talking to someone — and should have seen the hazard.
• “The hazard was open and obvious.” If the dangerous condition was clearly visible, the property owner argues you should have avoided it. This is one of the most common defenses in premises liability cases.
• “You ignored warning signs.” Wet floor signs, caution tape, and posted warnings are used to shift blame to the victim. However, a warning sign does not automatically eliminate liability if the property owner could have corrected the hazard instead.
• “Your footwear was inappropriate.” High heels on slippery surfaces, sandals in construction areas, or worn-out shoes with no traction.
• “You were in a restricted area.” If you entered an area where you were not supposed to be, the property owner’s duty may be reduced.
• “You had been drinking.” Alcohol impairment is used to argue you were less aware of hazards and less able to navigate safely.

How to Overcome Comparative Fault Defenses

The best defense against comparative fault is evidence. Photograph the hazard immediately — its size, visibility, contrast with the surrounding surface, and the lighting conditions. Document the absence of warning signs. Note what footwear you were wearing and whether it was reasonable for the location. Get witness statements from people who saw the hazard and your fall.

Your attorney can also argue that the “open and obvious” defense should not apply when the victim’s attention was reasonably directed elsewhere (distraction doctrine), when the property owner should have anticipated the victim would encounter the hazard despite its visibility (deliberate encounter doctrine), or when the hazard was not truly obvious despite the property owner’s claims.

The Open and Obvious Doctrine

The “open and obvious” defense deserves special attention because it comes up so frequently. In Illinois, a property owner may argue they had no duty to warn about hazards that were open and obvious to a reasonable person. However, this defense is not absolute. Illinois courts recognize that even obvious hazards may require action when the property owner should expect visitors to encounter them despite the risk — for example, a slippery entrance that visitors must cross to enter a store.

Frequently Asked Questions

Can I still recover damages if I was partially at fault for my premises liability injury?

Yes, as long as your fault is less than 50%. Your damages are reduced by your percentage of fault. An attorney can help present evidence that minimizes your share of fault and maximizes your recovery.

What does “open and obvious” mean in premises liability cases?

A property owner may argue a hazard was so clearly visible that they had no duty to warn you about it. However, this defense is not absolute in Illinois — even obvious hazards may require action if the property owner should expect visitors to encounter them despite the risk.

Does wearing high heels count as comparative fault in a slip-and-fall case?

It can be argued, but footwear alone rarely determines the outcome. The key question is whether the property owner maintained reasonably safe conditions. Wearing high heels in a restaurant — where many people wear dress shoes — is reasonable. Wearing them on an icy construction site would be different.

Talk to a Peoria Premises Liability Lawyer

Call (309) 672-9000 or contact us online for a free consultation. At Parker & Parker Attorneys at Law, we handle premises liability cases on a contingency fee basis — you pay nothing unless we recover compensation for you.