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Gross & Contributory Negligence

Deciphering Negligence, Gross Negligence and Contributory Negligence in Massachusetts

It would seem straightforward. You are injured and it’s someone else’s fault. Unfortunately, the law is not that simple. If you have suffered an injury, in most cases you must consider the implications of the doctrine of negligence and the body of law associated with it. At Feinberg & Alban PC, our attorneys have studied the law of negligence carefully because it is almost always the first question that must be asked in a personal injury case. Was there negligence? Without it, you will not get very far except in those rare instances where the doctrine of strict liability applies.

When multiple parties are at fault, things get complicated. We recently blogged about this in “As the Song Says, Please Release Me.” A conscientious attorney can break down the complexities of the law and address any legal questions regarding a convoluted legal and factual situation.

Understanding negligence definitions

To succeed in a personal injury case in Massachusetts an individual — the plaintiff — must prove negligence. Again, strict liability presents a different scenario, as do intentional torts.

Whether you have been in a car accident, construction accident, were injured at a store or on commercial or private property (those situations involving property are also known as premises liability cases), or if you are the victim of malpractice, it is important to have attorneys who understand Massachusetts’ complicated personal injury laws. It helps to know the following terms:

  • Negligence — Negligence is acting without care or attention to others or to safety. It is defined sometimes as the failure to exercise reasonable care. There is a large body of law on this topic, as you would expect. Most of it is from appellate decisions; the decisions of the Supreme Judicial Court and the Massachusetts Appeals Courts define our law in this area.
  • Gross negligence — Gross negligence is much higher in magnitude than ordinary negligence. Whereas ordinary negligence is simply failing to act in a reasonably prudent or cautious manner under the circumstances, gross negligence is exhibiting substantially less attention or care than that which is required by the circumstances. It is conduct that is just a step away from a reckless indifference or disregard for the probable consequences of one’s actions or omissions. See Altman v. Aronson, 231 Mass. 588, 591-592 (1919). There are certain instances where the plaintiff is required to show gross negligence rather than ordinary negligence; obviously, it is a higher burden but not insurmountable.
  • Comparative negligence — Massachusetts law underwent a major change forty years ago with the abolishment of contributory negligence as a defense. This change was earth-shattering in its implications. No longer would any negligence, even slight negligence, on the part of the plaintiff bar a recovery. The caveat was, and remains, that the plaintiff’s negligence must be 50% or less for there to be a recovery.  The plaintiff’s amount of recovery is reduced by the percentage of the plaintiff’s fault, assuming that the plaintiff is not more than 50% at fault. Accordingly, if a plaintiff were 25% negligent, the plaintiff’s damages would be reduced by 25%; if a plaintiff were 10% negligent, the plaintiff’s damages would be reduced by 10%; and even if the plaintiff were 50% negligent, the plaintiff could recover 50% of his/her damages. See M.G.L. c. 231, s. 85. Interestingly, this is a law written by the state legislature so not everything in the law of negligence comes from the appellate courts.

Please bear in mind that every state has its own tort law. The law of comparative negligence may differ in some subtle but important ways from state to state. For example, some states, such as Florida, where Robert Feinberg is admitted to practice, has pure comparative negligence. This means that even a plaintiff who is 70% negligent, can recover 30% of his/her damages, clearly not the case in Massachusetts.

In trying cases decades ago, the judges often read directly from the comparative negligence statute. That always concerned me because I wasn’t sure that it was conveyed in a clear fashion— it is after all statutory language, not an easy thing to decipher— to the jury the effect of their finding 51% or more negligence. Now, judges will instruct the jury in a clear way as to what will happen if they, the jury, find the plaintiff at fault by 51% or more.

We have experience

Feinberg & Alban PC handles a wide range of different types of personal injury cases, from intricate, detail-oriented cases involving multiple factors, parties and insurance policies to the most straight-forward. Our firm has years of experience with the following:

  • Vehicle accidents — We handle any kind of vehicle accident, such as car, truck, bicycle, all-terrain vehicle, motorcycle and pedestrian accidents.
  • Product liability — Including manufacturer’s defects, mislabeled products and recalls.
  • Premises liability —Including slips, trips, falls, or any type of physical injury related to negligent condition(s) of a property. Accidents may occur on a residential property leased by a landlord, a commercial property such as a store or a parking lot, a property that is under development such as a construction site, or any other privately owned property.
  • Work-related accidents — In addition to workers’ compensation from your employer, you may be also be able to receive compensation from a third party for the injuries sustained while at work. 
  • Medical malpractice — Physician, staff and surgical errors; prescription errors; and hospital errors.
  • Nursing home negligence — Mistreatment, negligent care, falls, failures to report illnesses.
  • Injuries from animals — There need not be a bite for compensation, just an injury caused by an animal. 
  • Injuries involving children —Playground accidents, school-related incidents or any injury where the plaintiff is a child. Children are the most sympathetic plaintiffs.
  • Catastrophic injuries — Head and brain injuries, spinal cord injuries, back and neck injuries, herniated disc injuries and burns.

Massachusetts laws can be confusing; call today discuss your options.

To discuss your specific situation, contact our experienced attorneys today. At Feinberg & Alban PC, we have a successful record proving negligence in heated negotiations and in court. Should you want to get a free assessment and speak to an attorney with no obligation, please call 617-232-5950 or contact us online to make an appointment.

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

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