Comparative Fault Illinois Personal Injury

Last Updated: October 24, 2026

Under 735 ILCS 5/2-1116, recovery is barred when the plaintiff’s contributory fault is more than 50 percent of the proximate cause. When that fault is not more than 50 percent, damages are diminished in proportion. Damages of $200,000 with 20 percent fault are diminished to $160,000.

You were rear-ended at a stop light, but the insurance adjuster says you share some fault because your brake lights were out. Or you slipped on ice in a store parking lot, but the defense argues you should have seen the ice and walked around it. In Illinois, the fact that you may bear some responsibility for your own injuries does not automatically bar you from recovering compensation. But it does affect how much you can recover, and in some cases, it can eliminate your claim entirely.

Illinois’s Modified Comparative Fault Rule

Section 735 ILCS 5/2-1116, source Public Act 103-1053, effective December 20, 2024, covers actions for bodily injury, death, or physical damage to property based on negligence, and product liability based on strict tort liability. Recovery is barred when the plaintiff’s contributory fault is more than 50 percent of the proximate cause of the injury or damage. When that fault is not more than 50 percent, damages are diminished in proportion to the plaintiff’s fault. If a jury finds damages of $200,000 and the plaintiff’s fault is 20 percent, the diminished amount is $160,000. No contributory fault may be attributed in an action for personal injury based on childhood sexual abuse as defined in section 13-202.2.

This is different from a pure comparative fault system, where a plaintiff can recover something even if they are 99 percent at fault. It is also different from the old contributory negligence rule, which some states still follow, where any fault on the plaintiff’s part bars recovery entirely. Illinois’s approach is a middle ground, but the 50 percent bar makes fault allocation one of the most consequential issues in any personal injury trial.

How Fault Is Allocated

In a case that goes to trial, the jury decides each party’s percentage of fault based on the evidence. Illinois Pattern Jury Instruction B45.01 instructs the jury to compare the plaintiff’s fault with the fault of each defendant and to reduce the plaintiff’s damages accordingly. The jury considers the conduct of all parties: the plaintiff, the defendant or defendants, and any third parties whose fault contributed to the injury.

In practice, fault allocation begins well before trial. The insurance adjuster’s initial evaluation of the claim includes an assessment of comparative fault. If the adjuster believes the plaintiff bears 30 percent fault, that assessment influences the settlement offer. Your attorney’s job is to challenge the adjuster’s fault allocation with evidence: the police report, witness statements, physical evidence from the scene, and expert testimony where appropriate. A strong factual presentation can shift the adjuster’s fault assessment and significantly increase the settlement value.

Common Comparative Fault Arguments

Insurance companies raise comparative fault in nearly every personal injury case. In car accident cases, common arguments include speeding, distracted driving, and failure to maintain a safe following distance. In premises liability cases, the defense may argue that the hazard was open and obvious, that the plaintiff was not paying attention, or that the plaintiff was wearing inappropriate footwear. In workplace injury cases brought against third parties, the defense may allege that the plaintiff failed to follow safety procedures.

Failure to wear a seat safety belt in violation of 625 ILCS 5/12-603.1(c) shall not be considered evidence of negligence, shall not limit the liability of an insurer, and shall not diminish any recovery for damages arising out of the ownership, maintenance, or operation of a motor vehicle. Learn more about car accident claims on our car accident practice area page.

Multiple Defendants and Joint Liability

In a covered negligence action for bodily injury, 735 ILCS 5/2-1117 makes every defendant found liable jointly and severally liable for past and future medical and medically related expenses. For the other damages, a defendant whose fault is less than 25 percent of the total fault of the plaintiff, the defendants sued, and any third-party defendant other than the plaintiff’s employer is severally liable. A defendant whose fault is 25 percent or more of that total is jointly and severally liable for those other damages. Section 2-1118 states the exceptions. Section 2-1116 is the separate reduction for the plaintiff’s own fault.

Protecting Your Claim Against Comparative Fault Arguments

The best defense against a comparative fault argument is evidence. Dashcam footage, security camera footage, witness testimony, and physical evidence from the scene can all help establish what actually happened. In car accident cases, cell phone records can rebut a distracted driving allegation. In slip-and-fall cases, photographs of the hazard and the surrounding area can show that the condition was not as obvious as the defense claims. Testimony from the plaintiff about their own conduct, presented honestly and consistently, is important. Juries can tell when someone is being straightforward, and credibility affects fault allocation.

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Frequently Asked Questions

Can I still recover compensation if I was partially at fault?

Yes, when your contributory fault is not more than 50 percent of the proximate cause. Damages are then diminished in proportion to that fault. If the damages are $100,000 and the plaintiff’s fault is 25 percent, the diminished amount is $75,000. Fault of more than 50 percent of the proximate cause bars recovery under 735 ILCS 5/2-1116.

Who decides the percentage of fault?

If the case goes to trial, the jury makes that determination based on the evidence and the jury instructions. In settlement negotiations, fault allocation is a point of negotiation between your attorney and the insurance adjuster. The adjuster will assert a fault percentage that reduces the claim value, and your attorney will present evidence to challenge or reduce that percentage.

Does comparative fault apply to all types of injury cases?

Section 2-1116 applies to actions for bodily injury, death, or physical damage to property based on negligence, and to product liability based on strict tort liability. No contributory fault may be attributed in an action for personal injury based on childhood sexual abuse as defined in section 13-202.2. Workers’ compensation claims operate under an entirely separate system that does not use comparative fault.

If you have been injured due to someone else’s negligence, the experienced personal injury lawyers in Peoria can help document the claim, evaluate coverage, and prepare the case for negotiation or litigation.

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

How Comparative Fault Works in Illinois Personal Injury Cases