Comparative Fault/ Contributory Negligence

In many car accident lawsuits, the issue of fault is central. In other words, “Who was responsible for causing the crash?”

Many times, the answer is not always singular. It could be that more than one person acted with negligence, and therefore more than one may be accountable. It’s not at all unusual to have more than one defendant in a crash case, even one that only involves two vehicles.

However, defendants will routinely assert that the plaintiff (injured party filing the lawsuit) was either wholly or partially to blame. This concept is addressed in the legal doctrines of comparative fault and contributory negligence.

As the Boston car accident lawyers at Jeffrey Glassman Injury Lawyers can explain, plaintiffs in Massachusetts can still recover damages from the defendant(s), assuming plaintiff’s share of the blame is not 51 percent or higher. In other words, the plaintiff can recover damages so long as he or she is not more at fault than the defendant or defendants collectively.

For example, if a motorist strikes a pedestrian in a crosswalk, one might assume the motorist is at fault. However, the defendant may assert contributory negligence by claiming pedestrian failed to carefully check for traffic before crossing.

M.G.L.A. 231 § 85 is the statute that governs such cases. It states:

Contributory negligence does not bar recovery in any action to recover damages for negligence resulting in injury or death if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought. However, damages may be diminished in proportion to the plaintiff’s negligence.

This is called the “Modified Comparative Fault, 51 percent Bar Rule.”

So for instance:

• Driver 1 and Driver 2 collide
• Driver 1 sues Driver 2 for related injuries
• At trial, jurors find Driver 1 is 20 percent liable, while Driver 2 is 80 percent liable
• Jury determines damages for the crash case were $200,000
• Damages will be reduced by 20 percent, based on the plaintiff’s comparative fault
• Total damages the plaintiff can collect will be $160,000

Driver 1 is still able to collect damages because his proportion of fault was not 51 percent or higher.

There are several different models of comparative fault, and states vary on which they recognize.

The kinds of fault are:

• Pure Contributory Negligence
• Pure Comparative Fault
• Modified Comparative Fault

Pure Contributory Negligence – This model, which four states and the District of Columbia recognize, holds that an injured person cannot collect damages even if he or she is only 1 percent at fault. So a plaintiff faulted just 2 percent – while the defendant is faulted 98 percent – would collect nothing.

Pure Comparative Fault – This model allows an injured person to recover damages so long as they are not wholly at fault. So a plaintiff could be 99 percent at fault, and a defendant just 1 percent at-fault, and plaintiff could still recover that 1 percent of damages.

Modified Comparative Fault – This model allows an injured person to recover damages, so long as they are not 50 percent or 51 percent at fault. Twelve states adhere to the 50 percent Bar Rule, which allows the plaintiff to recover for damages so long as he or she is 49 percent or less at fault. Meanwhile, 21 states – including Massachusetts – adhere to the 51 percent Bar Rule, which allows the plaintiff to recover for damages so long as he or she is 50 percent or less at fault. In both scenarios, the amount of damages is lessened proportionally by the amount of fault.

It is our goal as Boston accident attorneys to fight against any finding of comparative negligence by our client because that ensures maximum recovery for damages.

Tied to the concept of comparative fault is that of joint and several liability.

This refers to the degree of liability among different defendants. When two or more parties are jointly and severally liable for an act of negligence, each party is independently liable for the full extent of injuries stemming from that negligence.

So if an injured person wins a judgment against several parties collectively, the plaintiff can collect the full value of that judgment from any one of them. That defendant then has the right to pursue action against the others to repay their share.

If a defendant settles with the plaintiff prior to trial, any remaining defendants could not pursue partial reimbursement against that defendant.

So for example:

• Driver 1 and Driver 2 are involved in a collision
• Driver 1 is injured and sues Driver 2, as well as Driver 2’s employer, Driver 2’s auto insurance company and the city, for a negligently-designed road
• City settles with plaintiff out-of-court
• Other defendants refuse to settle, and the case goes to trial
• Jurors find defendants 80 percent at-fault, Driver 1 is 20 percent at-fault
• Jurors award $100,000 in damages
• Driver 1 could only collect $80,000 – or 80 percent of damages – due to his own comparative fault
• Driver 1 may collect that $80,000 solely from the auto insurance company
• Insurance company could seek reimbursement from Driver 2 and Driver 2’s employer, but not against the city, as it already settled
• If Driver 2 and Driver 2’s employer cannot pay, the insurance company will still be responsible for paying all of the defendants’ apportioned damages

Juries in Massachusetts cannot apportion damages to absent defendants (also called “tortfeasors”), including ones who have already settled.

Contact Jeffrey Glassman Injury Lawyers today for a free and confidential consultation.