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Contributory vs. comparative negligence

North Andover residents who routinely follow the news often find it full of reports detailing lawsuits filed by people seeking compensation after a trip and fall accident or for injuries due to other forms of negligence. Indeed, according to most recent Civil Justice Survey of State Courts reported by Bureau of Justice Statistics in 2005, there were 1,863 premises liability lawsuits filed that year. While some of these cases are relatively cut-and-dry, determining negligence in most is rarely easy.

Most states follow either one of two philosophies when determining liability: comparative or contributory negligence. In comparative negligence scenarios, one can seek to recover damages based upon the percentages of liability assigned to everyone involved in an accident. In cases where the idea of contributory negligence is applied, one is barred from seeking any compensation if it’s determined that his or her actions contributed to an accident at all.

The principle of comparative negligence has different applications of its own. Some states subscribe to the idea of pure comparative negligence. This means that plaintiffs can recover a percentage of total damages minus that portion of which they were determined to be responsible. An example of this would be when a plaintiff is determined to be 20 percent responsible for an accident, he or she can still seek to recover 80 percent of the total damages from the property owner.

Massachusetts counts itself among those states which follow the modified comparative negligence philosophy. Chapter 231, Section 85 of the state’s General Laws says that one may recover damages in cases of negligence if his or her own contribution “was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought.” This principle is commonly referred to as the 51 percent Bar Rule.


55 Ginty Boulevard Haverhill, MA 01830
Phone 978-374-4736, Fax 978-521-5307

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