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Massachusetts Injury and Wrongful Death Attorneys Talk About Contributory Negligence

What is contributory negligence?

Contributory negligence prevents recovery for people who helped cause the accident in which they were injured and is a defense to liability in a personal injury case. If defendants can show that personal injury plaintiffs contributed in any way, however slight, to the accidents that caused their injuries, then the plaintiffs are barred from recovery.

While most U.S. states have adopted modernized comparative negligence laws, some cling to the contributory negligence defense theory. Unlike contributory negligence, with 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.

Several versions of comparative negligence rules are followed by different states. In some states, like Massachusetts, a plaintiff who is less that 51 percent at fault can recover damages. The damages are reduced the plaintiff’s share of the fault. For example, if a plaintiff is awarded $100,000 in damages but is found to be 20 percent at fault for the injury, then the damage award is reduced by 20 percent and the plaintiff receives a net damages award of $80,000.

When does contributory negligence bar recovery?

Drivers who engage in a distracting activity, such as texting, while driving may be at least partially to blame if injured in a subsequent car wreck. For example, assume John is texting while driving and Jane, in another lane, swerves to miss a dog in the road. If John were paying attention instead of texting, he might have seen the dog and Jane and avoided a collision. But since John was mid-text, he didn’t see the dog and didn’t take action to avoid colliding with Jane. John overcorrected, ran off the road and hit a utility pole, breaking his leg. In a state following a traditional contributory negligence theory, John could not collect damages from Jane because his distracted driving contributed to his injuries.

What other states still follow the traditional contributory negligence theory?

The states below are still clinging to a contributory negligence theory:

  • Alabama
  • Washington, D.C.
  • Maryland
  • North Carolina
  • Virginia

All other states have adopted a version of comparative negligence. Some of them allow monetary recovery for a plaintiff who is less than 50 percent at fault, some states allow recovery for a plaintiff who is less than 51 percent at fault and still others 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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