In a personal injury case, who was at fault for the accident is the main issue that is dealt with. The plaintiff in a personal injury case must establish the defendant was negligent. But, what about when the defendant denies he was responsible for the accident and claims the plaintiff caused or contributed to the accident? The defendant’s defense in the case will be based on contributory/comparative negligence.
Under the old traditional contributory negligence defense, if a defendant could prove that the plaintiff contributed to causing the accident at all, then the plaintiff could not recover any money for his or her injuries. This old rule is not used in Massachusetts anymore.
In Massachusetts, our legislature has enacted a modified comparative negligence law. It can be found in Massachusetts General Law Chapter 231 § 85, which states: “Contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made. In determining by what amount the plaintiff's damages shall be diminished in such a case, the negligence of each plaintiff shall be compared to the total negligence of all persons against whom recovery is sought. The combined total of the plaintiff's negligence taken together with all of the negligence of all defendants shall equal one hundred per cent.”
What this means is that the plaintiff cannot recover any money for his or her injuries if a judge or jury finds him or her to be 51% or more at fault for the accident. If the plaintiff is found to have contributed less than 51% toward the accident, then he or she can recover money. The amount of money, however, is reduced by the percentage of fault the judge or jury assigned to the plaintiff.
For example, in a lawsuit filed by a plaintiff for injuries she sustained in a car accident, the defendant claims the plaintiff caused the accident and he is not responsible for her damages. The case is litigated and ultimately tried before a jury. The jury, after listening to the testimony of the plaintiff, defendant and witnesses, and evaluating all the evidence presented at trial, determined that the plaintiff was 25% at fault and the defendant was 75% at fault. The jury awarded the plaintiff $100,000 for her injuries. The plaintiff’s verdict will be reduced by the 25% fault assigned to her by the jury. So, she will receive a net award of damages in the amount of $75,000,