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Massachusetts Injury and Wrongful Death Attorneys Discuss Comparative Negligence

What is comparative negligence?

Comparative negligence is a modernized alternative to the traditional contributory negligence theory, which is a defense to liability in a personal injury case. Under the old contributory negligence theory, if a defendant could show that a personal injury plaintiff contributed in any way, however slight, to the accident that caused the plaintiff’s injuries, then the plaintiff was not entitled to any compensation.

Over the last 50 years, most U.S. states adopted comparative negligence laws to negate the contributory negligence defense. Under comparative negligence, the judge or jury considers all the evidence presented in a case and assigns blame to one or both parties on a percentage basis. Comparative negligence laws result in greater fairness to all parties.

What is the rule in Massachusetts?

Massachusetts law governs personal injury cases, and the state legislature enacted a modified comparative negligence rule. Massachusetts uses the 51 percent comparative negligence rule, which is similar to several other states. Under the rule, plaintiffs can only recover if their share of the blame was less than 51 percent. If plaintiffs are 51 percent or more at fault, then they cannot recover at all, with only a few exceptions.

Another important facet of comparative negligence is that plaintiffs’ damages are reduced by their share of the blame. For instance, if a plaintiff is awarded $100,000 in damages but was found to be 20 percent at fault for the injury, then the damage award is reduced by 20 percent. The plaintiff would receive a net damages award of $80,000.

What other states follow the 51 percent comparative negligence rule?

These states below follow a modified 51 percent comparative negligence rule similar to Massachusetts’:

  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Indiana
  • Iowa
  • Michigan
  • Minnesota
  • Montana
  • Nevada
  • New Hampshire
  • New Jersey
  • Ohio
  • Oregon
  • Pennsylvania
  • South Carolina
  • Texas
  • Vermont
  • Wisconsin
  • Wyoming

Several other states follow further modified comparative negligence rules. And some states deny recovery to a plaintiff who is 50 percent at fault or more (one percentage point different from Massachusetts’ rule), while other states allow plaintiffs to recover even if they are 99 percent at fault. In each instance, a plaintiff’s damages award is reduced by the share of fault.

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