What Does Comparative Negligence Mean in a Car Accident Lawsuit?

Web Admin - Monday, March 11, 2019
Barrington car accident attorney comparative faultThe question of comparative negligence--sometimes referred to as contributory fault--often arises in an Illinois personal injury lawsuit. If you are seriously injured as the result of another party’s negligence and awarded damages of $100,000, you would expect to receive $100,000. However, under Illinois’ modified comparative negligence law (735 ILCS 5/2-1116), the total amount of compensation you receive will be reduced by the percentage of fault attributed to you, up to 50 percent. For example, if you are awarded $100,000 but found to be 25% at fault for the events which caused your injuries, your award will be reduced to $75,000. If you are assigned more than 50 percent of the blame, you are barred from receiving any compensation.

How Comparative Fault Is Determined Under Illinois Law

Fault is determined based on the evidence and the law. For example, if you are properly stopped at a red light and are rear-ended by a speeding driver, you did not do anything wrong. The driver behind you failed to obey the speed limit and to slow or stop to avoid a collision, so they would be assigned 100 percent of the fault. 

If, however, you were in the process of changing lanes when you collided with a speeding driver, each of you might be assigned part of the fault. You had a duty to make sure the lane was clear before moving into it. The other driver had a duty to obey the speed limit and to slow down to avoid a collision if possible. 

When fault must be apportioned, your attorney will thoroughly study the events leading to your injury. This effort may include reviewing physical evidence, interviewing witnesses, studying police reports, gathering medical records, and consulting with experts. Most commonly, your lawyer and the defendant’s lawyer will discuss the evidence and come to an agreement about the amount of damages and the division of fault. If no agreement can be reached through negotiation, you will have to go to court.

In a court trial, your attorney will argue that the defendant’s negligence was the primary or sole cause of the events that led to your injuries. Under Illinois law (735 ILCS 5/2-613(d)), the burden is on the defendant to show how your own negligence contributed to your injuries and to argue what percent of the fault should be assigned to you. The jury--or, in the case of a bench trial, the judge--will then decide how the fault should be apportioned.

Consult an Experienced Palatine Personal Injury Lawyer

If you have been severely injured in a car accident or other incident resulting from another person or company’s carelessness, consult a knowledgeable Schaumburg civil litigation attorney for advice. Call the law offices of Drost, Gilbert, Andrew & Apicella, LLC at 847-934-6000. There is no fee for your initial consultation.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.


The Dangers of Serious Injuries in Rollover Accidents

Web Admin - Wednesday, June 13, 2018
Schaumburg rollover accident attorneyAny type of motor vehicle crash is dangerous for drivers and passengers, but rollover accidents can be especially hazardous. In fact, while these accidents only make up 2.2% of all motor vehicle collisions, they account for nearly one third of the fatalities which occur in car accidents. In the 220,000 rollover accidents which occur in the United States each year, there are 9,000 deaths, 14,100 serious injuries, and 224,000 minor/moderate injuries. If you are involved in a rollover accident, it is important to understand your options for recovering compensation from the party or parties who were liable for your injuries.

Causes of Rollover Accident Injuries

Rollover accidents are particularly dangerous for the occupants of a vehicle, because standard safety systems such as seat belts and air bags may not provide sufficient protection from the type of damage which can occur. Injuries in rollover accidents are often caused by:

- Roof intrusion - When a vehicle’s roof is impacted, parts of the vehicle’s structure can impact a person’s body, or a person may be crushed, causing severe injuries such as broken bones, brain injuries, and internal bleeding can result.

- Uncontrolled movement - The violent motion of a rollover accident may cause drivers and passengers to be thrown about the inside of a vehicle, and they may collide with doors, windows, steering wheels, or other parts of a car. This can result in serious bodily damage, including back and neck injuries, sprained joints, or strained muscles.

- Complete ejection - A person may be thrown from a vehicle during a rollover accident, which can lead to severe head and spine injuries.

- Partial ejection - Parts of a person’s body may come in contact with surfaces outside the vehicle, and they may be crushed between the car and the road or ground. This can lead to severe limb injuries that may require amputation.

Rollover accidents can occur for a variety of reasons, but they are more common in larger vehicles such as SUVs and trucks than in passenger cars. Drinking and driving, driving with a large number of passengers, and driving at excessive speeds are often factors in these types of crashes.

Contact a Rolling Meadows Rollover Accident Lawyer

If you have been injured in a rollover accident, you should contact a Barrington personal injury attorney as soon as possible to determine your options for recovering compensation for your injuries. Multiple parties may be liable for your injuries, including the driver of the vehicle that rolled over, other negligent drivers, manufacturers of defective auto parts that caused the crash, or a city or state government which did not maintain safe road conditions. Call our office at 847-934-6000 to arrange a personalized consultation.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.


Bars May Be Held Liable for Injuries Caused By Drunk Drivers

Web Admin - Friday, June 01, 2018
Palatine personal injury lawyer dram shop liabilityCar accidents can be devastating, especially when they are caused by a drunk driver. These drivers’ carelessness and lack of concern for people’s safety can lead to serious, debilitating injuries or even death. When a person is injured or killed because of a driver’s negligence, they may be able to seek compensation for their damages through a personal injury lawsuit. In addition to the negligent driver, other parties may be liable for the injuries caused, including the establishment that sold a driver the alcohol that led to their drunk driving.

Illinois Dram Shop Laws

Under Illinois law, victims who have been injured by a drunk driver may pursue damages from a bar, restaurant, nightclub, or liquor store that sold alcohol to the driver. Typically, the injured party must show that alcohol was provided to the driver by the establishment, this alcohol directly led to the driver’s intoxication, and the injuries suffered by the victim were caused as a result of this intoxication.

Illinois law provides limits for the damages which can be recovered in a dram shop lawsuit, and these limits are updated each year. As of January 20, 2018, these limits are:

- Personal injuries and property damage: $68,777.44 - This covers the costs of medical treatment and other expenses related to a person’s injuries, as well as any damage to their vehicle or other property which occurred in the accident.

- Loss of support or loss of society: $84,061.32 - Loss of support refers to the loss a family suffers because a victim is unable to provide financial support after being injured or killed in an accident. Loss of society refers to impairment to family relationships that occur when a person is injured or killed, including the love, affection, and companionship that the person would have provided to their family. Victims may seek compensation for either loss of support or loss of society, but not both.

Dram shop lawsuits have a statute of limitations of one year, which means that a lawsuit must be brought within one year after the accident or injury occurred.

Contact an Arlington Heights Dram Shop Liability Attorney

Bars, restaurants, and nightclubs have a responsibility to make sure that their patrons are acting safely, and if they do not take steps to prevent drunk driving, they may be held liable for the injuries that occur as a result. If you have been injured in a drunk driving accident, the attorneys of Drost, Gilbert, Andrew & Apicella, LLC can help you understand your options for pursuing compensation from the drunk driver and anyone else who was responsible. Contact a Crystal Lake personal injury lawyer at 847-934-6000 to schedule your personalized consultation today.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.


Insurance Claim After an Automobile Accident

Web Admin - Friday, July 31, 2015

insurance claim, Illinois car accident lawyer, insurance disputeIn a perfect world, we would not need insurance because we would never have any accidents. Unfortunately, we do not live in such a wonderful place. If you have never been involved in an automobile accident, you may not be familiar with the process of making an insurance claim. Though we hope you never have to go through this process, understanding what to expect if you do can be helpful.

Illinois Fault-Based Insurance

When it comes to automobile accidents, Illinois is a fault-based state. This means that whoever is legally at fault for the accident is responsible for paying those individuals injured by the accident. Usually, this means that the at-fault party’s insurance carrier will pay for the damages. An individual involved in an accident caused by another driver has three options:

  1. 1. File a claim with his or her own insurance company, which will then pursue a subrogation claim against the at-fault party’s insurance company;
  2. 2. Pursue a claim directly with the at-fault party’s insurance company; or
  3. 3. File a personal injury lawsuit against the at-fault driver.

Pursuing Insurance Claims

Usually, automobile accidents involve claims with insurance companies. The requirements on automobile insurance are codified under the Illinois Insurance Code. After a claim is filed, a claims adjuster will be assigned to the case. The adjuster may contact the insured person to obtain more information about the accident. In addition, the adjuster may do the following:

  1. 1. Request a copy of the police report;
  2. 2. Contact the other driver involved in the accident;
  3. 3. Contact any known witnesses to the accident;
  4. 4. Inspect the car for damages (this may include the adjuster taking photographs of the vehicle); and
  5. 5. Contact healthcare providers for information in relation to any injury expenses.

If the accident resulted in no injuries, the only issue will be repair to the vehicle. Resolution of claims made for vehicle repairs usually involves one of the following options:

  1. 1. Use a body shop approved by the insurance company: these shops are already approved to perform automobile repair by the carrier; the claimant simply takes his or her car in for an estimate and the work is subsequently completed;
  2. 2. Obtain quotes: the adjuster may request that the claimant take the vehicle to several shops in order to obtain estimates to compare; or
  3. 3. Claimant uses their own shop: claimants may decide to use a shop of their choosing. But, this may result in the claimant having to pay the difference in cost between the shop he or she chooses and what the insurance company determines is the fair price of the work.

If injuries occur as a result of the accident, resolving the insurance claims becomes more complex. It will be necessary for the claims adjuster to receive evidence of all medical bills. This may require the claimant to sign a waiver granting the insurance company access to his or her medical records. Further, personal injury can add significant costs on top of the cost to repair the vehicle. This added cost may make coming to an agreement on who was at fault and for what amounts much more difficult and time-consuming.

Making claims against insurance companies can be difficult and frustrating. For assistance with your insurance claim, call an experienced Illinois insurance dispute attorney at 847-934-6000 today. Drost, Gilbert, Andrew & Apicella, LLC proudly provides representation for individuals throughout the northwest suburbs, in communities such as Crystal Lake, Barrington, Deer Park, Inverness, and Schaumburg.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Steps to Take After a Car Accident

Web Admin - Thursday, June 04, 2015

illinois car accidents, Arlington Heights car accident lawyerIn the unfortunate event that you are involved in a car accident, there are several things you should do to help protect any future claims for personal injury you may have against the person at fault (or their insurance company). While it is not pleasant to think about being involved in a car accident, it can be beneficial to have an idea of what steps you should take in case an accident occurs.

Protecting Future Personal Injury Claims

After you have been in an accident, it is important to check to make sure everyone involved is uninjured. If someone is injured, you should contact emergency personnel to obtain proper medical treatment. It is important to remember that there are several requirements under Illinois law in regards to stopping at the accident, rendering aid, and reporting the accident. There are significant penalties for failing to perform any of these duties.

Quite often after an accident, it is part of natural reflex to want to apologize. However, this should be avoided, as it may indicate potential fault. Along similar lines, it is critical to not admit fault to anyone at the scene, such as the other driver or any passengers. Instead, when the police arrive and begin forming the report of the accident, you should provide the officer with an honest description of what happened.

Additionally, it may prove beneficial to take notes of the scene. Pay attention to things like the weather conditions, any stop lights or signs, and traffic conditions. All of this can end up being important while negotiating with the insurance company or during litigation. Utilize the camera on your phone and take photographs. These often provide much better evidence than people’s statements.

If you have even slight pain, as soon as possible after the accident you should be evaluated by a physician or other health care professional. While immediately after the accident you may have only minimal pain, it is possible that increased adrenaline is contributing to masking your pain. Additionally, minor pain may still be the result of a more serious condition.

Aside from obtaining needed treatment, seeking immediate medical attention will strengthen any personal injury claim you may end up making. If medical treatment is not immediately sought, it can be argued that the injury is not serious or nonexistent completely. Alternatively, assuming an injury is not contested, a gap between the accident and medical treatment can make it more difficult to prove the injury was caused by the accident.

During the period in which you are receiving treatment, it is critical that you keep track of the diagnosed injuries and the specific treatment administered. This includes keeping receipts for prescriptions and any medical bills you receive. Additionally, take note of any correspondence you have with doctors or other health care professionals. If any injuries are physically visible, you should take photographs of them, which will help demonstrate the extent and seriousness of those injuries.

Personal Injury Attorneys

If you have been involved in a car accident and believe you have suffered injuries as a result, you should reach out to a passionate Illinois personal injury lawyer in your area. Our skilled professionals proudly represent individuals from Crystal Lake, Buffalo Grove, and Arlington Heights, among many other areas. Contact us today to discuss your legal options. 

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Automated Cars, Legal Liability, and Trolley Problems

Web Admin - Tuesday, March 17, 2015

driverless car liability, Rolling Meadows car acciddent lawyerAlthough driverless cars were squarely in the realm of science fiction until recently, Google and other companies are moving towards making them a reality at a surprisingly rapid pace. As beneficial as these cars may prove to be, there are also concerns about them from a legal standpoint. One of the major issues is the question of who the law should hold responsible in the event of a traffic accident. There are also separate concerns about legal liability and ethics when driverless cars face difficult decisions, such as in the famous Trolley Problem.

General Liability Issues

One of the biggest legal issues related to driverless cars is the question of liability for accidents. With ordinary cars, liability is usually limited to one of the drivers, but that system would not work with driverless cars for obvious reasons. Many people's first instinct is to place liability on the company that makes the car. However, there are a variety of issues with that. First, it is possible that the accident with a driverless car was not the result of error by the manufacturer, but a problem with upkeep on the part of the owner. If the car's owner did not keep it properly maintained and that resulted in an accident, it would be unusual to put liability on the car's manufacturer. Beyond that, placing that much possible liability on the company could potentially cripple the development of the driverless cars.

The other competing theory is to treat driverless cars much like we treat cars now, and require people to insure them. This would remove liability from the possibly innocent owners, but it would come at the cost of increasing how expensive driverless cars are.

The Trolley Problem

A related issue is the question of how driverless cars would deal with the Trolley Problem. The Trolley Problem is an ethical dilemma in which a person is standing at a railroad switch, and they see a train coming. They know the train is going to hit five people on its current track, but the person at the switch has the option to throw the switch, sending it down a different track and only killing one person. Although it is an ethical dilemma, it may have important legal ramifications.

For instance, suppose a child darts out in front of a driverless car, and the car’s only option to avoid the child is to crash into something else, likely injuring the passengers. The car would need to make that decision, and definitely injure either the child or the passengers. The law would then need to determine whether the victim of the car's decision would have a claim against the manufacturer.

Although driverless car accidents are still a few years off, ordinary car accidents can still cause serious injuries. If you have recently been hurt in a car crash, contact an experienced Illinois personal injury attorney today. Drost, Gilbert, Andrew & Apicella, LLC serves clients in many northwest suburban towns, such as Rolling Meadows, Palatine, and Des Plaines. 

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

How Courts Determine Damages

Web Admin - Friday, February 27, 2015

personal injury damages, Schaumburg personal injury lawyerThe ultimate goal of personal injury law is to make injured victims whole again. In theory, the law would like to allow people who suffer injuries to collect full compensation for all of the physical, economic, and emotional harms that an accident imposes on them. Of course, there are practical difficulties with doing this, such as accurately measuring emotional harms. Still, the fact that full compensation is the goal of the law is helpful for people's understanding of what damages are available to them in personal injury lawsuits.

What Damages Are Available

The law makes a wide variety of damages available to injured parties. Some of the most straightforward ones to understand are special compensatory damages. These are damages related to specific, easily calculated harms that a person suffered as a result of an accident. For instance, in a case arising out of a car accident, a person could receive special compensatory damages from the person who caused the accident to cover their medical bills and the repair bills for their car. The damages can also work based on prospective harms. For instance, if a victim can prove that their injuries prevented them from returning to work or lowered their ability to earn money, then they can also recover for those sorts of losses.

Courts can also award victims general compensatory damages. Rather than being tied to specific, calculable harms, general compensatory damages are supposed to compensate victims for the emotional harms that they suffer. Theoretically, these damages should be related to a person's pain and suffering, but as a practical matter they tend to be related to the special compensatory damages that a jury awards.

Additionally, courts have the option of awarding punitive damages. These damages are a special class of damages that are only given out rarely. Rather than the other types of damages, which focus on ensuring that victims are paid back for the harm they suffered, punitive damages exist to punish the defendant. The idea is that courts may impose these extra damages to punish defendants for particularly heinous conduct.

Comparative Negligence

Once the court calculates the full amount of the damages, there is another step. The court must determine whether the injured victim was at all responsible for the harms that they suffered. Illinois law reduces the amount of money a victim can recover by the amount of responsibility that they bear for the accident. For instance, if a pedestrian is crossing against a light and gets struck by a drunk driver, the court may find them responsible for some amount of their own injuries. Suppose the court decides that the pedestrian was responsible for 10 percent of their harm; here they can only recover 90 percent of their total damages.

Traffic accidents can lead to life changing injuries. Fortunately, the law gives people options for how to handle these situations. If you were injured in a traffic accident and want to learn more about your rights, contact an Illinois personal injury attorney today. Our firm represents victims in many northwest suburban towns, including Schaumburg, Inverness, and Barrington.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

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