Massachusetts comparative negligence lets you recover damages after an accident even when you were partly to blame, as long as your share of fault is 50% or less; cross to 51% and you recover nothing. Under Chapter 231, Section 85 of the Massachusetts General Laws, whatever the jury awards you is then reduced by your percentage of fault before it reaches your pocket.1General Court of Massachusetts. Massachusetts General Laws Chapter 231 Section 85 – Comparative Negligence; Limited Effect of Contributory Negligence as Defense That single threshold drives most of what happens in a Massachusetts injury case, from settlement talks to trial strategy.
The 50 Percent Line
The statute allows recovery when the plaintiff’s negligence “was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought.”1General Court of Massachusetts. Massachusetts General Laws Chapter 231 Section 85 – Comparative Negligence; Limited Effect of Contributory Negligence as Defense In plain terms, a 50/50 split still lets you recover. A 51/49 split against you does not.
That gap of one percentage point is where most of the fight happens. Fault allocation is a judgment call for the jury, so relatively small factual disputes — who saw what, who braked when, who ignored a warning — can move the number across the line. Defense lawyers know this and push hard to shift blame toward the plaintiff. So do insurance adjusters, whose opening settlement offers usually reflect a fault percentage they have already assigned in-house.
How the Reduction Is Calculated
Once fault is set at 50% or less, the court reduces your damages by that percentage. If a jury awards $200,000 and finds you 30% at fault, you receive $140,000. At 50% fault, the same award drops to $100,000. At 51%, you receive nothing.1General Court of Massachusetts. Massachusetts General Laws Chapter 231 Section 85 – Comparative Negligence; Limited Effect of Contributory Negligence as Defense
The reduction applies to every category of damages, not just some. Medical bills, lost wages, and property damage take the same percentage cut as pain and suffering, emotional distress, and loss of enjoyment. The Supreme Judicial Court addressed the interaction between comparative fault and both categories in Santos v. Chrysler Corp., where a plaintiff found 10% at fault recovered the remaining 90% of a $12.8 million compensatory verdict.2Justia. Santos v. Chrysler Corporation
When More Than One Party Is at Fault
If several people caused your injury, the comparison is not you against any single defendant. It is you against the combined negligence of all the defendants together.1General Court of Massachusetts. Massachusetts General Laws Chapter 231 Section 85 – Comparative Negligence; Limited Effect of Contributory Negligence as Defense Suppose you are 40% at fault and three defendants share the remaining 60% between them. You still recover, because 40% is not greater than 60%, even though your share is larger than any individual defendant’s share.
Massachusetts also applies joint and several liability under Chapter 231B. Each defendant can be held responsible for the full amount of your damages regardless of how the jury divided fault among them. If one defendant has no assets or no insurance, you can collect the entire award from the others. Those defendants can then pursue contribution among themselves, but that dispute is theirs, not yours.
How the Defense Tries to Push Your Percentage Up
Because a single percentage point can wipe out a case, defense strategy in a comparative negligence claim is almost always about increasing the plaintiff’s share of blame. A few recurring arguments come up.
Attacking Causation
If the defense can show that the injury would have happened anyway, or that some other event broke the chain between the defendant’s conduct and the harm, the claim can fail before fault is even divided. Accident reconstruction and medical experts often carry this argument, especially when the plaintiff had pre-existing conditions or when several possible causes are in play. Massachusetts screens expert testimony under a variant of the Daubert standard adopted in Commonwealth v. Lanigan, so the judge decides which opinions the jury actually hears.
Assumption of Risk
Some activities carry dangers that participants knowingly accept. A collision during a basketball game or a fall while skiing generally cannot support a negligence claim. That defense has limits, though. It does not cover risks beyond what is normal for the activity, such as a coach teaching a dangerous technique, a gym failing to maintain equipment, or a facility creating hazards a participant would not expect.
Open and Obvious Dangers
Property owners owe reasonable care to lawful visitors, but that duty does not extend to hazards an average person would plainly see. In Toubiana v. Priestly, the Supreme Judicial Court held that owners are not required to make premises maximally safe, only safe for someone using basic caution.3Justia. Toubiana v. Priestly A visible sheet of ice on a January stoop is treated differently from a hidden defect under a rug. Defense lawyers use this to argue that the plaintiff’s failure to notice and avoid the danger was itself the real cause of the injury, which pushes the fault percentage up.
Deadlines That Can End the Claim Before Fault Is Argued
Comparative negligence only matters if the case is still alive. Massachusetts gives you three years from the date of injury to file suit, and courts dismiss almost every case filed late no matter how strong the underlying facts.4Justia. Massachusetts Code 260-2A – Three Years; Actions of Tort, Contract to Recover for Personal Injuries and Replevin
The Discovery Rule
Some injuries do not show up right away. When harm develops gradually or a medical error is not detected until later, the clock starts when you knew or reasonably should have known that you were injured and that someone else’s conduct caused it. Franklin v. Albert applied this rule in the medical malpractice context, where a patient may not learn for months or years that a surgical mistake or misdiagnosis caused lasting damage.
Tolling for Minors and Incapacitated Persons
If the injured person is a minor or is legally incapacitated by mental illness when the claim arises, the three-year period is paused until the disability ends. The full period then starts running from that point.5General Court of Massachusetts. Massachusetts General Laws Chapter 260 Section 7
One Cap Worth Knowing About
Massachusetts has no general cap on damages in personal injury cases, so a jury award reduced by your fault percentage is the number you take, subject only to collection issues. The exception is medical malpractice. Under Chapter 231, Section 60H, non-economic damages such as pain and suffering are capped at $500,000 unless the jury finds substantial or permanent impairment of a bodily function, substantial disfigurement, or other special circumstances that would make the cap unjust.6General Court of Massachusetts. Massachusetts General Laws Chapter 231 Section 60H Economic damages like medical expenses and lost income remain uncapped even in malpractice cases. If your claim is not a malpractice claim, no statutory ceiling limits what the jury can award before the comparative fault reduction is applied.