No, we're not being snide or cute about this, nor in any way trying to game the legal system, as will hopefully become clear to you by the time you finish reading this article. The following facts are taken from one of our actual cases:
A woman in her mid-40's contacted us seeking advice on whether she had a case. She was crossing a street mid-block on the south side of Chicago, where she got hit by a car. She was very seriously injured - with numerous broken bones which required multiple surgeries. She was a homeless woman, with a disheveled appearance and old clothes. After telling me about her injuries from the accident she added, "I want to be truthful with you. I am a drug addict. At the time of the accident, I was on drugs." My sense of her was that she was an honest, if troubled person. In fact, she had been mid-street, wobbling back and forth for some time, taking a few steps towards the far curb, then retreating. The police report indicated that the car that struck her had been stopped at a red light a block before the accident. In looking at photos of the area I found out that the street was straight from the red light to the point of contact.
Under the law, a driver of any motor vehicle, whether a car, truck or motorcycle, is under a duty to exercise ordinary care to avoid an accident. This means acting as a "reasonable" man would, under similar circumstances. Failing to act like a reasonable man is the definition of negligence. Based on the police report and the woman's serious injuries, I accepted the case. The insurance company for the driver denied any responsibility, citing the woman's crossing mid-block rather than in a crosswalk, and her drug intoxication. So I filed suit.
At the driver's deposition, he testified under oath, that he had first seen the woman while stopped at the red light. From the time the light turned green, and he began to accelerate, until striking her, maybe 500' away, he was able to see the woman. She was swaying back and forth, taking a step in one direction, then back. He estimated that when he was 100' away, he was traveling 30 mph. When asked how fast he was going when he hit her he said, "30 mph." Moreover, he stated he had not attempted to slow down, nor to swerve to avoid contact.
My client was clearly negligent, and partially responsible, for this car accident. But so was the driver. A reasonably careful driver tries to avoid an accident when there is an opportunity to do so, not run over a pedestrian that happens to be in his way.
My client's negligence did not relieve the driver from his duty of exercising ordinary care. He was negligent for failing to reduce his speed, and failing to even try to avoid hitting the woman. In legal terms, my client was contributorily negligent.
An element of every successful personal injury is proving "proximate cause." This means establishing a link between the defendant's negligence and the claimed personal injury. Proximate cause is "a cause that in the natural or ordinary course of events produced the plaintiff's injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury." Illinois Pattern Jury Instruction, #15.00
Under Illinois law, a plaintiff is allowed to recover if her negligence is 50% or less than the total. (If more than 50% negligent, a plaintiff cannot recover no matter how serious her injuries). The percentage of plaintiff's negligence serves to reduce the amount of compensation the plaintiff receives. In this case, plaintiff's medical bills were approximately $100,000, and the total value of her claim was estimated to be $500,000, as she had permanent effects from her injuries. If the jury were to find her 50% negligent, her case would be worth $250,000, which still exceeded the defendant driver's insurance policy limits. This fact was easily recognized by the defendant's insurance company, which agreed to pay my client the defendant's maximum insurance limits immediately after the defendant's deposition.
In evaluating a potential case, a car accident lawyer must neither be deceived by, nor ignore, his client's negligence. So long as the defendant can be shown to be at least 50% negligent, the case may well be worth pursuing.
