Documenting the accident, taking pictures of the accident scene, and exchanging information with the other driver, and filing a police report can help accident victims prove they are not at fault. Drivers and occupants should follow Illinois law and stay on the scene following the accident, reporting the scene to police officers immediately after the accident or within 30 minutes after they are discharged from the hospital following the accident. Any admissions of fault or statements about who caused the accident should be avoided, especially when the driver is communicating with anyone from an insurance company. Seeking medical attention and maintaining records is also essential.
Do All States Require a Victim to Prove Fault?
Not all states require a victim of a car accident to prove that he or she was not at fault (“negligent”) for the accident to recover. States have different requirements when it comes to showing fault in a lawsuit. Illinois, for example, is a fault-based state (specifically, a contributory fault state), as opposed to a “no-fault” state. In a no-fault state, the insurance company typically pays out regardless of who was at fault for the accident or damages. The amount of payout depends on things like the category of loss and the insurance coverage.
Contributive Fault in Illinois
In Illinois, lawsuits between parties involved in a car crash are settled based in part on the contributive fault standard. Under this standard, a plaintiff can still sue for bodily injury or damage to physical property even if he or she did or may have contributed to the car accident or the damages to persons or property. To have a chance at succeeding, the plaintiff needs to show that he or she was not more than 50% responsible for the accident or injuries. The percentage of fault is determined in court by the “trier of fact.” If the lawsuit involves a jury trial, then the jury is responsible for determining the percentage of fault of each driver. If the trial is a “bench trial,” then the judge will make this determination.
Determining the percentage of fault attributable to each party requires that the trier of fact look at the factors and circumstances in which the accident and damages occurred. This will be talked about in more detail below, including how injured parties can make sure that the insurance company and the court have the correct facts.
Cause of Accident versus Cause of Damage to Persons in Illinois
As a point of clarification, the court (and the insurance company) will determine the fault of the parties in the context of the damages, not just who caused or contributed to the accident occurring. When it comes to determining who is at fault, and for “what,” this is an important distinction.
For example, it may be that Driver A was the primary cause of the accident, but if Driver B did not stop his or her car and stay at the scene of the accident – as is required by Illinois law – then Driver B may be found to be responsible for further or avoidable damages to himself or herself or others that occurred after the accident. If, after being sideswiped by Driver A, Driver B breaks the law by continuing to speed off and subsequently loses control of the vehicle and hits a tree, Driver B may be found to be at fault for the damage to the car or Driver B from hitting the tree, even though Driver A caused the accident. The court will look at the circumstances and facts that involved or led to the ultimate damage to person or property in allocating fault, such as if Driver B could have stopped the vehicle but chose not to, and why.
Likewise, if Driver A caused the car accident, but Driver B did not get medical help for the unconscious Driver A or passengers in Driver A’s car, Driver B may be found to be partially at fault for subsequent injuries if the injuries could have been avoided altogether or diminished if Driver B had acted differently.
Documenting the Accident and Taking Pictures of Scene
Documenting the scene of the accident by taking photographs or a video provides the court and the insurance company with critical information to determine fault. Photographs provide objective evidence, or as close to it as possible, of what happened, to whom, and why. Each driver is encouraged to take photographs, rather than rely on the other driver to do so, to make sure that what he or she views as important is documented. If either driver is unable to take pictures, drivers can ask a bystander or passenger to do so.
Staying on the Accident Scene
Illinois law requires that the driver of any vehicle involved in a car accident “immediately stop” the vehicle at the scene of the accident or as close to it as possible. The drivers are required to remain at the scene of the accident until the parties have exchanged information and provided aid to injured persons.
In Illinois, failure to stay on the accident scene can subject the driver to criminal charges, ranging from a misdemeanor to a felony. If a lawsuit is filed, or an insurance claim, the other party will likely bring up that the driver abandoned the scene, which can potentially create issues for the driver that would not be there had he or she stayed on the scene. To avoid this, drivers are advised to stay on the scene.
If a party to an accident was supposed to, but did not, stay on the scene of the accident, he or she is required by Illinois law to report the accident to the police or sheriff’s office nearest the accident “as soon as possible,” or, not more than 30 minutes after the accident. The party is required to inform the police of the place, date, and time of the accident, as well as the driver’s name and address, registration number of the vehicle, and names of all other occupants of the vehicle. If the party was “hospitalized and incapacitated” during the 30-minute window discussed above, the party must instead report the above information within 30 minutes after being discharged.
The information that needs to be exchanged between the drivers or people in each car is the driver’s name, address, registration number, and owner of the vehicle. The drivers must also present their driver’s licenses to anyone involved in the accident if requested. If no one involved in the accident can “receive and understand” this information, then someone at the scene is directed to contact the police immediately.
Following these procedures is important to stay compliant with Illinois law but will also make it easier for the driver or injured parties to handle an insurance claim or lawsuit in the future.
Providing Medical Assistance to Injured Persons
Illinois’ law also requires that drivers, passengers, and others involved in a car accident provide injured persons with medical aid, either by calling 911 on their behalf or by taking them to the hospital. If it is apparent that the injured person has suffered from serious injuries, the law generally requires that involved parties to the accident get medical help for the injured person. Otherwise, it is required if the injured party requests medical aid.
Providing medical assistance to injured persons who need or ask for it may also limit the potential liability for medical treatment costs for conditions that can carry less risk if they are diagnosed and treated earlier.
Seeking medical assistance also creates a paper trail and record of the injured person’s medical condition. Some conditions, such as a herniated disc from a car accident, may not show up on scans until months after the accident causing the injury. The symptoms, however, may be experienced by the injured party as soon as immediately after the car accident. Having that initial doctor’s examination will make sure that there are scans that can be used as reference points and doctor’s notes and record to link the car accident to conditions that develop or worsen later on.
Immediately Contacting the Police to Report the Accident
In Illinois, the driver of a vehicle involved in a car accident is required by law to, by the fastest available means of communication, contact the nearest police department to report the accident. In Illinois, the reporting requirement is required by law regardless of the apparent severity of the damage or injuries.
Failing to contact the police after a car accident can subject the party to criminal charges for breaking the law. While this, on its own, may not mean that he or she is found at fault for the accident, it may weigh against him or her in court or be used by the insurance company to avoid payment of compensation.
Maintaining Copies of Important Records
Drivers are encouraged to request and keep copies of important documents. The formal police or accident report will be prepared and released after the police speak with the involved parties. The information gathered during these interviews will be compiled into an accident report, which may include a statement as to who was most likely at fault. While this statement may not necessarily determine the outcome, for example, of a lawsuit, it is important information for a driver to have. The formal accident report documents the conclusions drawn by the responding officer and the initial factual investigation. Further, the formal accident report puts the driver on notice that a claim may or may not be filed against him or her. With this information, the driver can prepare for the next steps, such as by contacting an auto accident attorney in Chicago, or wherever the accident occurred.
Medical records, such as after-visit summaries and doctor’s information, should likewise be kept in a safe place for future reference. Drivers and injured persons should document visits with the doctor to show that they are diligently complying with the recommendations of the doctor and create a narrative about their health following the accident.
If the injured person decides to bring a lawsuit to be compensated for medical bills, having the important medical records and, for example, a pain journal will help show the progression of the condition and prove that it was caused by the accident, rather than a preexisting condition.
In addition to the above, drivers should maintain a record of the information exchanged at the scene of the accident between the parties at the scene of the accident, as well as any photographs or videos taken of the accident scene. The insurance company for either driver will likely need this information to settle the claim. Likewise, if the driver brings or defends a lawsuit against him or her or a third party that arose out of the accident – such as to recover for medical bills or property damages – then the driver can use this information to prove that he or she is not responsible for the damages.
Contacting Owner of Property or Unattended Car Damaged in Car Accident
If an unattended car was involved in a car accident, then the driver of the attended car is required to locate and notify the owner of the unattended car. Likewise, if the property was damaged because of the accident, then the driver(s) are required to locate and notify the owner of the damaged property. Drivers are further advised to report the accident to the local police as soon as possible.
Any gaps or missteps following the accident, especially where damage was done to people or property, can work against the driver, potentially causing an uphill battle for him or her to bring or defend a lawsuit.
Not Making Statements or Admissions of Fault
Anyone involved in a car accident, particularly, drivers, should refrain from making any statements about the accident to anyone except his or her attorney or the police officers. Drivers are also cautioned against making admissions of fault to anyone except to their auto accident attorney.
Statements that would suggest that the driver did not, for example, look both ways before proceeding through the intersection or comments about the weather making it difficult for the driver to see oncoming cars or pedestrians may cause issues for the unsuspecting driver down the road, potentially exposing him or her to liability.
Insurance companies may use these statements as a reason to blame the driver and show that the insurance company should not have to pay costs. To avoid this, drivers can limit their conversation about the accident to objective, straightforward communication with the police when reporting the accident and to their auto accident attorney.