Can I Recover If I Was Partly at Fault in Massachusetts?

Being partly at fault does not end a Massachusetts injury claim. M.G.L. c. 231, sec. 85 says contributory negligence shall not bar recovery so long as the injured person’s negligence “was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought,” and that any damages allowed are then reduced in proportion to that person’s share.

Four words decide the whole thing: not greater than

This is the phrase to read twice. Not “less than.” Not greater than. An injured person who is found exactly fifty percent responsible has a share that is not greater than the fifty percent on the other side, so the section does not bar the claim. At fifty-one, the share is greater, and the section stops holding contributory negligence back. That is the entire cliff, and it turns on one word.

Recovery at fifty percent is not full recovery

The same sentence that preserves the claim reduces it: damages allowed shall be diminished in proportion to the amount of negligence attributable to the injured person. Half the fault means half the damages. The section also explains how the comparison is run when more than one party is being sued: each plaintiff’s negligence is compared to the total negligence of all persons against whom recovery is sought, and the plaintiff’s share plus all of the defendants’ shares equals one hundred per cent.

A ticket is evidence, not an ending

People talk themselves out of calling anyone because they were cited at the scene. Section 85 answers that in its own paragraph. The violation of a criminal statute, ordinance or regulation by a plaintiff which contributed to the injury shall be considered as evidence of that plaintiff’s negligence, but the violation shall not, as a matter of law and for that reason alone, serve to bar recovery. Evidence of negligence and an automatic loss are two different things, and the statute says which one this is.

The section presumes you were careful

The last paragraph is the most underused sentence in it. The burden of alleging and proving the negligence that would diminish or bar recovery sits on the party who seeks to establish it, and the plaintiff shall be presumed to have been in the exercise of due care. The starting position under the statute is not that you have to prove you were careful; it is that you are presumed to have been, and someone else has to show otherwise.

Assumption of risk is gone

Section 85 also says, in one line, that the defense of assumption of risk is abolished in all actions under it. The argument that a person knew something was dangerous and went ahead anyway is not the separate, claim-ending defense it once was.

What this page is not

This page describes what section 85 says. It does not tell you what percentage of fault a jury would assign in your case, how the words apply to your facts, or how the comparison would run against the particular parties involved. Read the section yourself at the link above, and telephone the firm about a real crash rather than deciding on your own that the fault was yours.