You were in a wreck, or you slipped and fell, or maybe a piece of machinery malfunctioned and hurt you.  Now the insurance company is telling you it was partly your fault.  Maybe you were going five miles over the speed limit. Maybe you didn't see the "wet floor" sign until it was too late.  So does that mean you can't recover anything?  Not necessarily.  Here's the good news: being partially at fault for an accident doesn't automatically bar you from compensation.  But how much you can recover, and whether you can recover at all, depends a lot on where the accident happened.

At our firm, we handle cases in Missouri, Illinois, Kansas, and Arkansas, and the rules in each state are different enough that it's worth breaking down.

Missouri: Pure Comparative Fault

Missouri follows what's called a "pure comparative fault" rule.  In plain English, that means your compensation gets reduced by your percentage of fault, no matter how high that percentage is.  So if a jury decides you were 20% responsible for the accident and the other driver was 80% responsible, your damages get reduced by 20%.  If your total damages were $100,000, you'd walk away with $80,000.

Here's the part that surprises people: even if you were found to be 90% at fault, you could still recover 10% of your damages in Missouri.  In this scenario, you'd still walk away with $10,000 of the total damages of $100,000.  There's no cutoff or bar, as in other states.  That doesn't mean insurance companies won't fight hard to push your fault percentage as high as possible.  They will, because every percentage point matters to their bottom line and to yours.  But the law doesn't slam the door on you just because you share some of the blame.

Arkansas and Kansas: Modified Comparative Fault (the 50% Bar Rule)

Arkansas and Kansas play by different rules.  Both follow a "modified comparative fault" system, often called the 50% bar rule. Under Arkansas and Kansas law, you can recover damages as long as your percentage of fault is less than the combined fault of everyone else involved.  Once your fault hits 50% or more, you're barred from recovering anything.

So if you're found 49% at fault in Arkansas and Kansas, you can still recover 51% of your damages.  But if you're found 50% at fault, even by a single point, you get nothing.  That threshold makes fault percentage a much bigger deal in Arkansas and Kansas cases, and it's exactly why insurance adjusters on the Kansas side of Kansas City and in Bentonville and across Northwest Arkansas will sometimes push hard to get you close to, or over, that 50% line.

Illinois:  Modified Comparative Fault (the 51% Bar Rule)

Illinois uses a modified comparative negligence system with a 51% bar rule, which allows an injured person to recover damages reduced by their share of fault as they are 50% or less responsible.  In the State, you can still recover damages even though you're equally at fault than the combined fault of the other parties.  It's only when your fault rises to 51% or more that you're completely barred from recovery.  

In Illinois, if you're found 50% at fault, you can still recover 50% of your damages.  As opposed to Kansas and Arkansas where you'd be foreclosed from recovery, a tie in Illinois goes to the plaintiff, so to speak.  Accordingly, if a jury finds you were just as much to blame for the accident, you would nevertheless recover $50,000 of the hypothetical total damages of $100,000.

Why This Matters for Your Case

Insurance companies know these rules just as well as we do, and they use them.  It's common for an adjuster to call shortly after an accident, sound sympathetic, and then quietly suggest you were partly to blame, sometimes before any real investigation has happened.  That's not an accident.  Shifting even 10 or 15 percentage points of fault onto you can save the insurance company real money, or in Arkansas and Kansas, eliminate their liability altogether.

That's why it matters to have someone in your corner who understands how fault gets calculated, what evidence actually supports or undercuts a fault argument, and how these rules apply in the state where your accident happened.  Police reports, witness statements, traffic camera footage, and accident reconstruction can all affect that percentage.

Bottom Line

Being partially at fault doesn't mean your case is over.  In Missouri, you can recover something even if you were mostly to blame. In Arkansas and Kansas, the math is less forgiving, and that 50% line is one you don't want to cross without a fight.  Illinois is the middle ground, where you have to be found more at fault (51% or more) than the others to lose.  Either way, don't let an insurance company decide your fault percentage for you. If you've been hurt and you're worried you might share some blame, talk to us before you talk to the adjuster again. We know these rules inside and out, and we'll make sure your side of the story actually gets heard.

The author, Jose M. Bautista, is a partner at Bautista LeRoy LLC.  Should you have any questions or wish to discuss the article, our attorneys can be reached at www.bautistaleroy-bentonville.com or 479-208-6614.