The Effect of a Person's Own Negligence on the Right to Recover Damages

Accidents often occur because someone was negligent. In such instances, the person at fault may be required to compensate the injured party for the damages incurred.

Sometimes, accidents are caused by a combination of factors, including the fault of the injured party. In these instances, injured parties might still be able to recover damages even if they may be partly to blame. This article briefly discusses persons' rights to civil recoveries even if they have partially contributed to their own injuries.

I. Definitions of Negligence.Under our common law, so-called "ordinary negligence" involves conduct which creates an undue risk of harm to others. In contrast, contributory negligence or fault is conduct which creates unreasonable risks of harm to one's self.

Generally, the same legal standard applies in both contexts. Specifically, a person must exercise the degree of ordinary care that a reasonably prudent person would exercise in similar circumstances. The reasonableness of the risks being undertaken is weighed by balancing the importance of the interests or goals being pursued against the probability and likely extent of any harm that may be anticipated.

II. The Effect of a Plaintiff's Own Negligence Varies.The effect of persons' negligence on their ability to recover damages from an accident varies according to the law of the particular state involved. Some states permit a "contributory negligence" theory of defense. According to this approach, an injured plaintiff bringing a legal claim may be precluded from a recovery if his or her own negligence is considered a substantial factor in causing the injury. Many of the states which have adopted this rule also follow a so-called "last clear chance" exception to it. Under this exception, the injured plaintiff may still recover, notwithstanding any negligence of his or her own, if the defendant had the last opportunity to avoid the accident by exercising proper care yet failed to do so.

In contrast, other states, including Massachusetts, apply a "comparative negligence" theory of defense. In these jurisdictions, the reasonableness of the plaintiff's own conduct is compared to the reasonableness of the defendant's conduct. Damages are available as long as the negligence of the plaintiff does not exceed the negligence of all the defendants against whom a recovery is sought. In Massachusetts, the precise effect that is given to the findings of relative fault is set forth by statute in General Laws Chapter 231, Section 85.

As a general principle in all jurisdictions, even if the plaintiff's conduct may have been illegal to some degree, this fact alone is not conclusive and does not necessarily prevent him or her from recovering damages. Instead, the reasonableness and relevance of the plaintiff's illegal conduct must be assessed in the totality of all the circumstances.

In virtually all of the states as well, questions of contributory and comparative negligence and related principles, whenever disputed, must typically be decided by juries as matters of fact, rather than by courts as matters of law. These issues require a careful balancing of many factors. Accordingly, injured persons are encouraged to weigh with counsel the benefits of pursuing possible legal claims and not merely dismiss the possibility of obtaining a recovery out of hand based on faulty assumptions or feelings that they may have about being partially responsible for their own injuries.