How Comparative Fault Affects Your Pedestrian Accident Claim in Illinois

When a pedestrian is struck by a vehicle, the injuries are often severe. Victims may face months or years of medical treatment, lost wages, and lasting pain. If you or a loved one has been hit by a car in Illinois, you may already know that compensation is available through a personal injury claim. But what happens if the driver’s insurance company argues that you were partly at fault? Illinois law has specific rules, called comparative fault, that determine how your compensation is affected when multiple parties share blame for an accident.

Understanding how comparative fault works is crucial, especially in pedestrian accidents, where drivers and insurers often try to shift blame onto the pedestrian. This blog will explain the basics of Illinois’ comparative negligence system, how fault is determined, and what it means for your potential recovery.

Pedestrian Accidents in Illinois

Illinois continues to see significant numbers of pedestrian crashes each year. According to the Illinois Department of Transportation (IDOT) 2023 Crash Facts Report, there were 4,533 pedestrian crashes statewide, resulting in 198 fatal pedestrian crashes and 4,169 pedestrian injury crashes. Cook County, which includes Chicago, consistently accounts for the majority of these incidents due to heavy traffic, busy intersections, and high pedestrian volumes.

Nationally, the National Highway Traffic Safety Administration (NHTSA) reported that 7,522 pedestrians were killed in traffic crashes in 2022, the highest number in more than 40 years. Thousands more suffered serious, often life-altering injuries.

These numbers highlight how vulnerable pedestrians are on the road, and why fault disputes matter so much in claims.

What Is Comparative Fault?

Comparative fault (sometimes called comparative negligence) is a legal rule that allocates responsibility when more than one person contributes to an accident. Instead of placing blame solely on one party, comparative fault allows a judge, jury, or insurance adjuster to assign percentages of fault to each party involved.

For example:

If a pedestrian is hit while crossing the street, the driver may be found 80% at fault for speeding and failing to yield, while the pedestrian may be found 20% at fault for crossing outside of a marked crosswalk.
The pedestrian’s damages would then be reduced by 20%.

This system aims to balance fairness, ensuring that injured parties can still recover compensation even if they made a mistake, so long as they were not primarily responsible.

Illinois’ Modified Comparative Negligence Rule

Illinois follows a modified comparative negligence system under 735 ILCS 5/2-1116. Here’s what it means:

You can still recover damages if you are 50% or less at fault.
If you are more than 50% at fault, you cannot recover anything.

In other words, as long as the driver bears the majority of responsibility, you may still be entitled to compensation.

For example:

If a jury awards you $500,000 in damages but finds you 30% at fault, your recovery will be reduced to $350,000.
If you are found 55% at fault, you recover nothing.

This makes the determination of fault percentages one of the most important parts of a pedestrian accident case.

How Fault Is Determined in Pedestrian Accident Claims

Establishing fault is rarely straightforward. Courts, juries, and insurance adjusters consider multiple types of evidence, including:

Police reports: Crash reports often contain the officer’s observations, citations issued, and statements from both parties.
Traffic laws: Violations of Illinois traffic laws (such as failure to yield to pedestrians in a crosswalk) strongly indicate fault.
Witness statements: Independent eyewitnesses can help establish who entered the crosswalk first, who had the green light, or whether the driver was distracted.
Surveillance or dashcam video: Footage from traffic cameras, businesses, or nearby vehicles often provides crucial evidence.
Expert testimony: Accident reconstruction specialists can analyze skid marks, vehicle speeds, and sightlines to determine how the crash occurred.

Because fault directly affects the value of your claim, insurance companies often fight hard to argue that the pedestrian was more than 50% at fault.

Common Allegations Against Pedestrians

Insurance companies frequently raise defenses aimed at reducing payouts by shifting blame. Some of the most common claims include:

Jaywalking: Crossing outside of a marked crosswalk or against a traffic signal.
Sudden entry into traffic: Allegations that the pedestrian darted into the road without warning.
Distracted walking: Using a phone, headphones, or being otherwise inattentive while crossing.
Impairment: Claims that alcohol or drugs contributed to unsafe behavior.
Failure to use crosswalk signals. Walking against the “Don’t Walk” indicator.

Even if some of these allegations are true, they do not automatically bar recovery under Illinois law. What matters is whether the pedestrian’s share of fault exceeds 50%.

Common Driver Negligence in Pedestrian Crashes

While insurers may focus on a pedestrian’s actions, many crashes are primarily caused by driver negligence. Examples include:

Failure to yield at crosswalks: Illinois law requires drivers to stop for pedestrians in crosswalks when traffic signals are absent or not working.
Speeding, especially in school or residential zones: Speed reduces a driver’s ability to stop and increases crash severity.
Distracted driving: Texting or using a phone while driving is illegal under 625 ILCS 5/12-610.2.
Impaired driving: Alcohol or drugs drastically increase the risk of pedestrian crashes.
Failure to obey traffic signals or signs: Running red lights or ignoring stop signs puts pedestrians in danger.

These factors often outweigh claims of pedestrian fault when carefully investigated and presented.

Real-World Examples of Comparative Fault in Action

Consider these scenarios:

Scenario 1: A pedestrian crosses at a marked crosswalk with the “Walk” signal. The driver runs a red light and strikes the pedestrian. The driver is likely found 100% at fault, and the pedestrian recovers full damages.
Scenario 2: A pedestrian crosses mid-block outside of a crosswalk at night, wearing dark clothing. The driver is traveling slightly over the speed limit but not distracted. A jury might assign 60% fault to the pedestrian and 40% to the driver, meaning no recovery for the pedestrian.
Scenario 3: A pedestrian steps into the street against the light, but the driver is texting and speeding. The pedestrian may be assigned 40% of the blame and the driver 60%. The pedestrian’s damages are reduced by 40%, but they still recover 60%.

These examples show how fact-specific these cases are, and why skilled legal representation is critical.

How Comparative Fault Affects Settlement Negotiations

Because Illinois follows the modified comparative negligence rule, fault percentages play a major role in settlement discussions. Insurance adjusters often argue that a pedestrian was at least 51% responsible, hoping to avoid liability entirely.

Attorneys counter this by gathering strong evidence of the driver’s negligence and pushing back against exaggerated claims of pedestrian fault. Demonstrating that the pedestrian’s share of fault is below 50% can dramatically increase settlement value.

Damages Available in a Pedestrian Accident Claim

If you are injured in a pedestrian accident in Illinois and found 50% or less at fault, you may recover compensation for:

Medical expenses: Hospitalization, surgeries, rehabilitation, and future medical needs.
Lost wages: Income lost due to time off work, as well as diminished earning capacity.
Pain and suffering: Physical pain and emotional distress from the accident and injuries.
Disability and disfigurement: Permanent physical changes or limitations.
Loss of a normal life: Impacts on daily activities and enjoyment of life.
Wrongful death damages: If a loved one is killed, family members may recover for funeral costs, loss of support, and companionship under the Illinois Wrongful Death Act.

Remember, your recovery will be reduced in proportion to your assigned percentage of fault.

The Role of an Attorney in Protecting Your Rights

Navigating a pedestrian accident claim on your own can be overwhelming, especially when fault is disputed. An experienced Naperville pedestrian accident attorney can:

Conduct a thorough investigation of the crash.
Preserve video footage, witness statements, and physical evidence.
Work with accident reconstruction experts.
Challenge the insurance company’s claims of pedestrian fault.
Negotiate for a fair settlement or take the case to trial if necessary.

Having legal representation ensures that your side of the story is fully heard and that fault is allocated fairly.

Contact the Award-Winning Naperville Pedestrian Accident Lawyers at John J. Malm & Associates

Because insurance companies often try to shift blame onto pedestrians, it is critical to act quickly, gather evidence, and work with an attorney who understands Illinois’ comparative negligence laws.

At John J. Malm & Associates, we have years of experience representing injured pedestrians throughout Illinois. We know how to push back against unfair blame and fight for the full compensation our clients deserve. If you or a loved one has been injured in a pedestrian accident, contact us today for a free consultation. Let us help you navigate the legal process and protect your rights.