What is “Comparative Negligence”?

I recently settled a case that was in lawsuit and ready for trial. Like all good settlements, neither I nor my client were overjoyed by the settlement. It wasn’t exactly what we hoped the case was worth, but it was certainly far more than any previous offers. In short, we were able to push the defense to offer more by showing we were ready for trial.

How did comparative negligence factor into this settlement? Read more and find out!

Comparative Negligence vs. Contributory Negligence

Some states bar plaintiffs in a personal injury lawsuit from all recovery if they are found to be responsible for their own injuries, even one little bit. That is known as “contributory negligence.”

Fortunately, Illinois is a “comparative negligence” state, meaning the plaintiff still recovers as long as his or her responsibility for the incident is 50% or less. Whatever percentage of negligence is ascribed to the plaintiff is the percentage by which total award is reduced.

An example would be a case where a plaintiff sues another driver for rear-ending them. They sue and prove damages of $100,000. But the jury believes the plaintiff “stopped suddenly” and is 25% at fault for the accident. The award would be reduced to $75,000.

One case I was prepared to try involved a bicycle and a car. How did juror perceptions of bicycles on the roadway factor into my client’s decision to settle the case?

The Incident, the Injury, and the Aftermath

My client was riding his bicycle on the road. Totally legal. The other driver was starting up from a stop light, and seemingly decided she could fit her big SUV between my client’s bike and the cars in the lane to her left. She testified to some things my client denied—that he and his girlfriend were weaving between lanes and that my client veered left in the lane and hit her. He denied this vehemently.

But let’s talk about one of the big elephants in the room: my client was riding without a helmet, without a shirt, on a busy two-lane roadway, on a weekend day.

So unless you’re a cyclist who assumes all cars are trying to kill you daily (my hand is partially raised), you probably have a different viewpoint from the injured cyclist. You might have all sorts of stories about cyclists coasting through stop signs, weaving in traffic; you may even believe riders should not be allowed to ride on busy roads or that failing to wear a helmet means they are “asking for it.”

Now, my client had a very serious and painful injury. There is no dispute about that. He dislocated and fractured his shoulder. Anyone who has ever injured a shoulder understands this is among the most painful things you can do to your body. A dislocation is one of the most painful injuries. And once it’s put back into the socket, all the damage done by the dislocation is still there—torn ligaments, muscle pain, arthritic changes in the joint. So the injury was rock solid to prove, right?

Not so fast.

While it is possible that my client will require a shoulder replacement in the future, he’s currently in his 20s, so that may not be for decades. Had his doctor been called to testify, he would have had difficulty testifying about that prospect with certainty. In addition, my client had been a competitive weightlifter in his younger days, and defense lawyers and insurance companies are great at challenging the amount of medical bills claimed in personal injury cases.

How Does a Jury Arrive at A Comparative Negligence Figure?

Maybe a dartboard?

Honestly, jurors will arrive at what they believe the facts dictate, but those facts are filtered through their own experience. A jury of 12 serious urban cyclists will see things a lot differently than a jury of suburban drivers who dislike bikes on the road.

The law says cars must yield to bicycles and leave a gap of three feet between a cyclist and their vehicle.

Just because that is the law does not mean everyone believes it is correct, or that many don’t have a negative perception of cyclists, especially in urban, heavily traveled areas.

My analysis was that my client would make a superb witness, as would his girlfriend who witnessed the accident. But I also knew the other driver would tell the story (maybe she genuinely believed it) that he darted into her vehicle.

I did not believe a jury of 12 people would all be sympathetic to the cyclist. In fact, I was assuming the jury would be strongly anti-cyclist, since the accident happened on a busy street on a weekend and my client didn’t have on a helmet, or even a shirt. People form opinions.

Based upon those facts, I assumed that a Cook County jury would find my client anywhere from 20% to 45% comparatively negligent.

Thus, we arrived at a calculation of what the risks and rewards of a trial would be. We crunched numbers and determined what he would receive from a settlement versus the best- and worst-case scenarios of trial.

Ultimately, my client believed settlement was the best option for him.

And neither of us was overjoyed.

That is how settlements work. You just never know if you could have drawn the perfect jury, perfect judge, and just nailed them on this case. Or gotten killed.

Bottom Line—What Do You Get in Your Pocket?

Every personal injury attorney wants to crow about a huge jury verdict they got for a client. But the bottom line in the real world is what the client will walk away with after attorney’s fees, costs advanced (and trial with medical expert witnesses is expensive), and liens.

As we’ve explained in a number of earlier blog posts, most people are fortunate to have their medical bills paid by their health insurance. However, that health insurance usually has a subrogation interest in recouping some or all of what it paid out when you recover from a third party. Further, if you have an unpaid medical provider, typically there is a lien on your financial recovery, meaning the provider is entitled to be paid at least a portion of its outstanding bill from the proceeds of a settlement or verdict.

One thing I did as I negotiated for a settlement on my injured client’s behalf was to negotiate all the liens and subrogation amounts down as low as legally possible. Once we realized we had reduced them by at least one-third, we weighed the numbers and determined what my client would receive as a bottom line.

We also evaluated the cost-benefit of trial versus settlement, as well as factoring in the additional costs trial preparation would take away from my client’s recovery.

Ultimately, and without tons of enthusiasm, we determined together that settlement was the best option and outcome.

No two people ever see a case exactly the same way; not attorney and client, not two jurors, and not two judges. Everyone sees things that stick out to them. What one person may see as a negative (a large SUV running over a cyclist) might be viewed by another in a completely different light (a bicyclist on a busy road getting in the way of cars trying to get places!).

Trials are all about risk versus reward. Comparative negligence is one major factor in that analysis.

While I know my client is pleased with the settlement and result, it’s rare for anyone to be one hundred percent thrilled at the end of a settlement. On the one hand, there’s the lingering “what if” a jury had come back with a huge verdict. On the other, there’s the possibility that the plaintiff could have left the courtroom empty-handed.

The certainty of a settlement eliminates all the “what-ifs.” Certainty is good. It’s also not entirely satisfying all the time!

Takeaways

• Comparative negligence means the plaintiff must be 50% or less at fault (and their recovery will be reduced by their fault percentage).
• How jurors perceive plaintiffs, the circumstances of the incident, and other seemingly irrelevant factors play a large role in how a case is evaluated.
• Trials are risky. Cost-benefit analysis must be employed to determine whether settling or going to trial is in the best interest of the plaintiff.

Contact Chicago Personal Injury Lawyer Stephen Hoffman

As in all cases involving injury, dog bites or injuries, workers’ compensation, medical malpractice, or other injury and potential liability, if you have been hit by a vehicle immediately get medical treatment, report the crash to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.

If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front, and he only gets paid if you do. Don’t wait another day; contact Stephen now.