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You were involved in a severe motorcycle accident. You have injuries, but you will recover. However, the time off work and the extensive medical costs are starting to drain you financially, which makes you turn to the idea of filing a personal injury lawsuit.

While you did not cause the accident, you feel that you might have contributed to the injuries in that accident. For example, you chose not to wear a helmet. Therefore, you suffered serious injuries, including a traumatic brain injury. Since you did not wear a helmet, are you partially at-fault here?

If so, how does that impact your compensation value, or will you receive compensation at all?

These types of cases are quite common, especially motorcycle and vehicle accident cases. One party might have contributed slightly to the accident or injury but did not cause the incident itself. While you could try to battle the insurance company and prove that you are not to blame, it is best that you consult with an injury attorney any time you are dealing with an injury case – especially one that involves you being partially at-fault.

How to Handle Motorcycle Injuries When You are Partially At-Fault in Chicago

When you might be partially to blame for your injuries, the insurance company uses it to their advantage. They will try to push the blame as much on you as possible to reduce their losses or get the case thrown out. Therefore, any time you question your role in the accident, you should speak with an attorney. An attorney can protect you from this common strategy used by insurance companies and defense attorneys.

Fault for Not Wearing a Helmet

Currently, the state of Illinois has no helmet requirements for motorcycle riders. While there have been attempts, once you are over 18 years old, you are not required to wear a motorcycle helmet. While you might not receive a citation for not wearing your helmet, your failure to wear a helmet could be used against you in a civil case.

The motorist might have caused the accident, but if most of your injuries and damages came from a traumatic brain injury (TBI), the insurance company could argue that your choice to not wear a helmet is your contribution and that their client is not responsible 100 percent for the damages associated with that injury.

Understanding How the Negligence System Works

Before we can discuss how your negligence might affect your case, we must first talk about how the negligence system works in the state of Illinois. Illinois uses the comparative method for negligence.

Comparative versus Contributory

Negligence is what determines liability in an accident. In a motorcycle accident in Illinois, you must show which party was the most negligent to decide on how compensation is apportioned. There are two principal types of negligence used: comparative and contributory. Sometimes these terms are used synonymously, but they should not be. These are two very different types of negligence determinations.

Some states use contributory, while others use comparative or a modified version of comparative. Most states today use comparative, but there are still a few states relying on the older contributory rules.

Contributory negligence laws do not allow a victim to recover compensation if they are even partially at-fault. Therefore, if the courts find that you are even five percent at-fault, you are barred from seeking compensation entirely. As you can see, many victims would be unable to collect compensation, because all it takes is a good enough defense attorney to argue that the victim was even a portion at-fault.

That is why most states use comparative or modified comparative negligence laws instead. Comparative laws are used in Illinois, and they allow the injured party to collect compensation still even if they are partially at-fault for the accident. However, their damages are reduced with respect to the amount of fault.

The Three Types of Comparative Negligence

There are three types of comparative negligence being used in various states:

  • Pure Comparative Negligence
  • Modified Comparative Negligence – 50 Percent Rule
  • Modified Comparative Negligence – 51 Percent Rule

Pure Comparative Negligence

In pure comparative negligence, the judge assigns each party a degree of fault in the accident. Then, depending on the amount of responsibility assigned to you, your compensation will be reduced. For example, if your case settles at $100,000, but you were found 30 percent at-fault, your reward is reduced by $30,000 – which means you get $70,000.

Modified Comparative Negligence

In a modified comparative negligence system, which is what is used in Illinois, the judge looks at the percentage of fault by each party. Unlike pure comparative negligence, if your fault percentage goes over a threshold, then you will be barred from seeking compensation.

Some states use the 50 percent bar, while others use the 51 percent. In Illinois, the law applies the 51 percent bar. Therefore, if the judge decides that you are 51 percent or more at-fault, then you cannot collect compensation for your injuries. You can, however, still obtain compensation if you are 50 percent or less at-fault.

Defending Yourself Against Accusations of Fault

Unfortunately, because the state allows you to collect compensation up to 50 percent or less fault, many insurance companies will try to prove you are 51 percent or more at-fault. The evidence is your best defense against this common tactic. The more evidence you have proving fault, the easier it will be to thwart these attempts.

Some evidence your attorney will use to protect you include:

  • Witness Statements – Eyewitness statements at the time of the accident are essential. A witness could be the deciding factor in determining fault in your case. For example, the witness saw the driver on the phone at the time of the accident, helping you prove that they were distracted, and their distraction caused your crash.
  • Photographs of the Accident Scene – Photographs help paint a picture for the judge and jury. Sometimes photos can show the condition of each vehicle in the accident, your injuries, and road conditions.
  • Police Report – The police report can indicate any citations given at the accident or arrests made, but also the officer’s determination of what happened. For example, the driver was ticketed for speeding. This citation will help prove that the driver was reckless at the time.
  • Cellphone Records – If you think that the other driver was distracted, such as texting or talking on their phone, your attorney can request cell phone records to prove that they were using their phone at the time of the incident.

What Happens When You are At Fault?

Even if you are at-fault for the accident (partially), you can collect compensation for your injuries and damages. Some compensation you might be entitled to include:

  • Medical Expenses – Your medical costs from the accident, including hospitalization, surgery, ambulance transportation, emergency room costs, physician visits, and follow-up visits will be included in your compensation.
  • Lost Wages – Time you took off work to recover from your injuries, meet with your attorney, go to trial, and attend mediation can also be included in your damages.
  • Loss of Earning Capacity – If you are permanently disabled or partially disabled and unable to make the same wages you did before the accident, then you can request compensation for your loss of earning capacity. Your attorney will calculate how much you would have made had you returned to work, including inflation and potential bonuses or promotions you missed because of your injury.
  • Property Damage – Any property damage from the incident, including damage to your motorcycle, can be included in your compensation.
  • Pain and Suffering – Injuries from a motorcycle accident are often catastrophic. You could suffer from severe lacerations, brain injury, spinal cord damage, amputation, and permanent disfigurement. Because of the long-term physical and emotional pain associated with these injuries, you can seek compensation for those losses.

Do I Need an Attorney for My Motorcycle Accident?

Anytime you suffer from an accident, it is in your best interest to speak with an attorney. An attorney has experience handling accident claims, including ones where you might be at-fault even partially. Your attorney can handle the investigation, evidence collection, negotiations, and the tedious tasks so that you can focus on recovering from your injuries.

After your motorcycle accident, seek medical attention right away. Then, contact the advocates at Malman Law. Our attorneys are here to help you receive maximum compensation. Do not assume that you cannot win a case just because you were partially at-fault. Our team has helped countless victims just like you receive compensation for their injuries.

Speak with an attorney today by calling 1-312-629-0999 or request more information online.

Firm Awards & Recognitions

Steven Malman was selected to the list. The list is issued by the American Institute of Legal Counsel. A description of the selection methodology can be found at

  • Steven Malman was selected to the list. The list is issued by the National Academy of Personal Injury Attorneys. A description of the selection methodology can be found at

  • Steven Malman was selected to the list for 2018-2019.

  • Only the top 100 trial lawyers from each state or highly-populated regions of certain states who are actively practicing in civil plaintiff and/or criminal defense law are eligible for invitation. Invitees must demonstrate superior qualifications, leadership skills, and trial results as a legal professional. The selection process for this elite honor is based on a multi-phase process based upon objective and uniformly applied criteria which includes peer nominations combined with third party research.

    Prospective members of The NTL are carefully screened prior to receiving an invitation for membership.

  • Top Attorneys Diamond Member

  • Top Attorneys of North America 2019-2020

  • The American Institute of Trial Lawyers is an invitation only professional organization composed of premier trial attorneys from each state. These attorneys exemplify the very best qualities and qualifications of an attorney. Each attorney must meet stringent qualifications as a civil or criminal trial attorney. These attorneys practice in a variety of fields to help and promote the ethical and elite practice of law. Selection is based on a thorough multi phase process which includes peer nominations and third party research. Each member must be in good standing with their local compliance organization. Membership is extended to only a select few in each state and/or region.

  • As the founder of Steven J. Malman and Associates, P.C., Attorney Steven Malman has 21 years of experience handling personal injury, nursing home, medical malpractice, premises liability, construction and workers’ compensation cases. Mr. Malman is one of Chicago’s leading authorities on personal injury law and has taken a special interest in defending the elderly from neglect and abuse. He has personally handled over 10,000 cases successfully, and collected hundreds of millions dollars for his clients.

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