If you were hurt in an accident that someone else caused, you might have a personal injury claim. Personal injury is a type of tort in Illinois. There are dozens of tort laws that determine when you can file a lawsuit when someone else is responsible for your injuries, and how much compensation you can get. You don’t have to learn all of these Illinois tort laws. Our attorneys at Staver Accident Injury Lawyers, P.C. already know personal injury law forward and backward. Let us fight to get you the most compensation possible for your injuries. There are no upfront fees. You don’t pay us unless we win your case. To schedule a free consultation, send us your information through our online form or call (312) 236-2900.

Defining Negligence in Personal Injury Cases

Negligence seems complicated. In legalese, it’s the failure to uphold a duty of care that is the direct and proximate cause of another person’s injuries. But it doesn’t have to be so complex. The duty of care is the way a person is supposed to behave. Everyone’s expected to act like reasonable people under the circumstances. Negligence is when a person acts unreasonably or carelessly.

Elements of Negligence

There are four elements to a negligence claim: duty, breach of duty, causation, and damages. To recover compensation, you have to prove the other party:

  1. Had a duty of care;
  2. Acted unreasonably or carelessly;
  3. Was the direct and proximate cause of your injuries; and
  4. Can compensate you for your physical, emotional, and financial injuries.

Negligence Per Se

Negligence per se is the violation of a statute that was put in place to protect people or their property. Violating the law is considered strong, clear evidence of a party’s negligence.

Implied Negligence

Sometimes it’s very hard or impossible to prove someone was negligent. That’s when the legal theory of “res ipsa loquitur” comes up. The Latin phrase means “the thing speaks for itself.” We’ll use circumstantial evidence to show that there’s no way you could have been hurt unless the other party was careless. We’ll show the accident was under the other party’s control and there aren’t any other plausible explanations for the accident and your injuries.

Gross Negligence

You might see legal documents talk about gross negligence. This isn’t the same as negligence, which you might see called ordinary negligence. They aren’t interchangeable. Gross negligence is conduct that is willful and wanton, malicious, or shows a clear disregard for other people’s health and safety. It’s compared to recklessness.

Understanding Liability

Liability is a party’s legal responsibility for your damages. In a personal injury case, this means the person or business has to compensate you for your injuries.

Fault vs. Liability

Fault and liability aren’t the same things. Fault means a person’s actions caused you harm. Someone can be at fault because of negligent, willful and wanton, or reckless conduct, a breach of warranty, or strict liability under the law. But liability is when the law makes a person or business responsible for paying you for your injuries.

Vicarious Liability

Another person or business not directly involved in the accident could be liable for your injuries because they’re responsible for the at-fault party’s actions. This is a legal theory known as “respondeat superior,” which means “let the master answer.” It’s the law that makes employers responsible for their employee’s harmful behavior.

Statutory Liability

Illinois’ negligence law mostly comes from court cases, not statutes. But a statute can make someone liable as well. A federal or state law can determine when a certain party is liable for certain damages.

Limits on Government Liability

Governments have limited liability because of the theory of sovereign immunity. What does that mean? You usually can’t jump to suing a government entity or agency. You can’t make Illinois or any branches of the Illinois government a defendant in a lawsuit except in limited circumstances. Local governments and government employees also have immunity. Instead, there’s a process to notify the government agency of your claim. If you can’t resolve it through the administrative process, only then can you file a lawsuit in some cases.

Direct and Proximate Cause

There are two forms of causation in personal injury cases. There’s direct cause, also known as cause in fact, which means if it weren’t for the party’s actions, your injuries wouldn’t have occurred. Proximate cause means your injuries are sufficiently related to the other party’s negligence. Your injuries have to be directly and closely connected to the other person’s carelessness.

Personal Injury Lawsuits

There’s a chance your case will go to court—even if you don’t end up going to trial. By partnering with a seasoned Illinois personal injury lawyer, you’ll have all the facts you need about litigation and the full claims process.

Parties in a Personal Injury Case

There are two main parties in any personal injury lawsuit: the plaintiff and the defendant. The plaintiff is the person who claims to be injured and files the lawsuit. The defendant is the person or business the plaintiff claims is responsible for their injuries. There can be one or more plaintiffs or defendants.

The Claims Process

A personal injury claim can take months or years to resolve. There are many steps in the personal injury claim and lawsuit process. Staver Accident Injury Lawyers, P.C. is here to help you from the very beginning to the end.

  • The accident: You suffer injuries because of someone else’s actions.
  • Medical treatment: You are treated by a doctor for injuries stemming from the accident.
  • Notifying insurance: You notify any relevant insurance provider of the accident and your injuries.
  • Legal consultation: You should talk with a lawyer as soon as possible after the accident to learn more about Illinois and your rights.
  • Accident investigation: Your attorney will independently investigate the cause of the accident.
  • Demand: Your lawyer will send a letter to the other party and their insurer demanding you receive compensation for your physical, emotional, and financial injuries.
  • Negotiations: The at-fault party might be willing to negotiate a settlement right away. But you shouldn’t accept an initial offer without talking to your lawyer.
  • Filing suit: Most personal injury claims are resolved without going to trial. But that doesn’t mean you shouldn’t file a lawsuit. Showing the defendant and insurer that you’re willing to go to court can help you get a better settlement.
  • Discovery: This is the longest phase of litigation. Through depositions, interrogatories, demands to produce documents, and requests for admissions, we gather as much information and evidence from the defendant as we can.
  • Settlement or trial: Once discovery is done, we might go through mediation to try and reach a settlement. You’ll either agree to a certain amount, or we prepare to take your case to trial.
  • Appeal: If the jury decides the defendant isn’t liable for your injuries, we’ll immediately review your case for grounds to appeal.

Proving a Personal Injury Claim

To win compensation, you have to prove each element of negligence. A lawyer can help you gather enough evidence to show it’s more likely than not that the defendant caused your injuries. We also know how to present the evidence to an insurer or jury as persuasively as possible.

The Burden of Proof

As the plaintiff, you’re responsible for proving the defendant was negligent. The defendant doesn’t have to prove they didn’t cause your injuries.

The Standard of Proof

In a civil personal injury claim, you have to show the defendant was negligent by a preponderance of the evidence. This is a lower standard than beyond a reasonable doubt, which courts use in criminal cases. By a preponderance of the evidence means it’s likely the defendant is responsible. You can think of it as it’s 50% or more likely that your allegations are true.


We can use direct and circumstantial evidence to prove your personal injury case. Direct evidence proves a specific fact is true. Circumstantial evidence asks the judge or jury to presume something is true. Common types of evidence in personal injury claims include physical objects, police reports, photos, video footage, audio recordings, business documents, eyewitness testimony, medical records, expert medical testimony, and other expert testimony.

What’s Your Personal Injury Claim Worth

In general, the value of a personal injury claim is the value of your out-of-pocket expenses and the value of non-economic injuries, like your pain and suffering.

You can receive compensation for past and future:

  • Medical expenses
  • Lost wages
  • Pain and suffering
  • Mental anguish
  • Disability
  • Disfigurement
  • Reduced quality of life
  • Loss of consortium
  • Property damage

Because every personal injury case is unique, it’s impossible to compare your case to settlements and jury awards you see online. You need more information. The best way to get a complete picture of the value of your case is to talk with an experienced personal injury attorney in Illinois. Numerous factors can make your claim worth more or less, including an insurance policy limit, the severity of your injuries, and whether you were also careless at the time of the accident.

Possible Defenses to a Personal Injury Claim

You have to go to court because the defendant doesn’t agree they’re at fault for your injuries and owe you money. You have to file a lawsuit and use evidence to prove the defendant’s liability. But the other person or business can use various legal theories to defend themselves.

Contributory Fault and Comparative Negligence

Contributory fault in Illinois is any fault of your own that is part of the reason why you were injured. Illinois follows a modified comparative negligence rule when you’re also at fault. Under this rule, you can recover compensation if you’re 50% or less at fault. But if you’re 51% or more responsible, then the law bars you from getting any money.

Lack of Jurisdiction

Depending on where you file the case, the defendant might claim the court lacks subject matter jurisdiction. This would mean the court doesn’t have a right to make a decision about the accident and would dismiss the case.

Doctrine of Federal Preemption

If there’s a conflict between Illinois and federal laws, then the court has to obey the federal law. This is because of the Supremacy Clause of the U.S. Constitution. This issue often comes up in product liability cases.

Assumption of Risk and Liability Waivers

If you were hurt on a business’s property or while doing a certain activity, the business might claim you knew there were risks involved and are responsible for your injuries. The business, like a ski resort, gym, or sports stadium, might claim you signed a waiver or agreed to the risk involved in the activity when you bought a ticket and entered the premises. Liability waiver claims are based on a written agreement. But the defendant can claim you assumed the risk of an activity even without a specific form or ticket.

Failure to Mitigate Damages

When you’re hurt in an accident, you have to do everything you can to minimize your injuries. This typically means seeing a doctor and following their treatment plan. But if you refuse to see a doctor or follow their advice, and your injuries get worse, the defendant can claim they aren’t responsible because your injuries shouldn’t be so severe.

Estoppel and Res Judicata

You can’t claim something in court that contradicts something you said before. If the defendant relied on something you claimed before or a previous decision in another case, they could use any contradictions against you. Res judicata means a final judgment on the merits of the issue bars you from asking a court to decide that issue again. You can’t ask a court to try the same case twice.

Family Immunity

In some jurisdictions, there are limits on when one family member can sue another for compensation. But not in Illinois. The state has never recognized intrafamily immunity for torts. It also abolished spousal immunity in the 1980s.

Statute of Limitations

There are time limits on how long you have to file a lawsuit. In Illinois, you have two years from the date of the accident to file a personal injury lawsuit. If you wait too long, the defendant can ask the court to dismiss the case right away.

Let Our Illinois Personal Injury Lawyers Help You

You don’t have to go through a personal injury claim on your own. Staver Accident Injury Lawyers, P.C. is here to help. We handle car accidents, all other types of auto accidents, premises liability, product liability, nursing home neglect and abuse, medical malpractice, workplace accidents, police brutality, and more. We know Illinois tort law, so you don’t have to. Let us fight for you.

Contact us through our online form or call (312) 236-2900 to set up your free consultation right away.

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