Massachusetts has a Comparative Negligence Law which applies when:

• The defendant raises the issue of your negligence, and
• The defendant proves by a preponderance of evidence that you were negligent and your negligence contributed to the cause of your injuries.

If the defendant meets his burden, the jury will determine what percentage you were negligent and what percentage the defendant was negligent. If your negligence was equal to or less than the defendant’s negligence, then, under Massachusetts personal injury law, you will prevail on the issue of liability. However, your damages will be reduced by the percentage of your negligence.

The following is an example of how comparative negligence applies in a personal injury claim. A jury finds that the defendant was responsible for your injuries, awards you $20,000.00, and finds that you were 40% comparatively negligent. Your award would be reduced by 40%, leaving you with an award of $12,000.00.

By statute, G.L. c. 231, § 85, Massachusetts has adopted the rule of “modified comparative negligence.” Under this rule, a plaintiff is barred from recovering any damages only if his or her negligence exceeds the combined negligence of all defendants. If the plaintiff’s negligence is 50% or less, the plaintiff may recover damages, but the award is reduced in proportion to the amount of plaintiff’s negligence. For example, if a plaintiff was awarded $100,000.00 in damages, but found to be 40% at fault for an accident, then the plaintiff could still recover, but the award would be reduced to $60,000.00. Comparative negligence is an affirmative defense and the defendant has the burden to prove the extent of a plaintiff’s negligence at trial.

Product Liability Claims

Additionally, in Massachusetts the defense of comparative negligence is not recognized with regard to products liability claims based on breach of warranty.  The rule also does not apply to damages awarded to a co-plaintiff for loss of consortium, even where the injured plaintiff’s recovery was reduced under the rule. An important aspect of the rule in Massachusetts is that, at trial, the total negligence of all the parties to the action as apportioned by the jury must equal 100%. The fault of non-parties or parties who have settled cannot be part of the 100% calculation. For this reason, where comparative negligence is an issue, a plaintiff may choose to keep all available defendants active in the case through trial, or settlement involving all parties.

Call Now for a Free Consultation

If you want more information about personal injury claims, contact Attorney Bob Allison today by calling 978-740-9433 or fill out our contact form.  You will receive a free consultation to review your claim.