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Contributory Negligence, Comparative Negligence. What’s in a name? A lot.

For decades, actually until the 1970s, when Massachusetts adopted the rule of Comparative Negligence, a slightly different doctrine was in effect: the rule of contributory negligence which was a complete bar to the plaintiff’s recovery. Thankfully that standard has changed. If a plaintiff is found negligent in an amount of 50% or less, he/she can recover. The damages are reduced to the extent of the negligence on the part of the plaintiff. Therefore, if a plaintiff is 20% negligent, his/her damages will be reduced by 20%. This changed the law because it has allowed anyone found negligent in an amount of 50% or less to recover. Previously, the doctrine of contributory negligence would completely bar recover, even if the plaintiff’s negligence was slight.

The above was a softening or liberalizing of a harsh law. Perhaps it did not go far enough. Consider the law of Florida where there is pure comparative negligence. This allows a plaintiff to recover who is even more than 50% negligent. Of course, that plaintiff will have his/her damages reduced by his/her negligence. Needless to say, it is something that plaintiff personal injury lawyers prefer.

One advantage in Massachusetts is that a Judge will instruct the jury on the effect of finding a plaintiff more than 50% negligent. That was previously done on occasion, usually by referring to the very confusing Comparative Negligence Statute. Now, you can get an instruction that in a clear way will explain to the jury the effect of a finding of 51% or more negligence on a plaintiff. Full disclosure is always good.

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