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Comparative Fault

The question of who pays for a motorcycle accident – and how much – depends not only on the extent of the damage, but also to what degree each party was at-fault. Absent a pre-trial settlement agreement, this is a question for the jury.

Massachusetts no-fault insurance laws require a driver’s insurance company to cover damages in less serious accidents, where expenses are under $2,000 and there are no permanent or severe injuries.

However, as Boston motorcycle injury lawyers at The Law Offices of Jeffrey S. Glassman well know, these types of crashes tend to be more severe. Therefore, damages often rise to the level of requiring those involved to seek remedy outside the no-fault system.

A common key defense strategy is to push blame onto the injured party, or at least to assert the motorcyclist shared some responsibility for what happened. Partial liability for a motorcycle accident is known as comparative fault. A finding of comparative fault in a motorcycle crash can significantly reduce the damages to which an injured motorcyclist is entitled.

What is Comparative Fault?

Comparative fault, also referred to in legalese as “comparative negligence” or “contributory negligence,” refers to the extent to which an injured person is responsible for the crash, and thus his or her own injuries.

M.G.L. 231 § 85 clearly states contributory negligence is not a bar for recovery. However, this is only true so long as plaintiff is not more than half responsible.

The state adheres to a principle known as a modified comparative fault with a 51 percent bar. That means if plaintiff is 51 percent at-fault for the accident, he or she may not recover damages. However, any amount less than that he or she may recover a portion of damages if the amount of fault is found to be less than 51 percent.

So for example, a driver of a passenger vehicle strikes a motorcyclist, who is badly injured. Motorcyclist sues driver, and the case goes to trial. Jurors find the driver is at-fault for the crash, but find the motorcyclist is also at-fault. Jurors apportion motorcyclist with 25 percent responsibility and award him $100,000 for his injuries. Because of that finding of 25 percent comparative fault, motorcyclist would only be able to collect $75,000.

This is why it’s important for plaintiff attorneys to avoid or at least minimize any finding of comparative fault in order to maximize the compensation an injured party will receive.

The law further states that if a plaintiff violates a criminal statute, ordinance or regulation pertaining to the accident (i.e., speeding, failure to wear a helmet, failure to signal lane change), this alone will not block plaintiff from recovering damages for injury or death. However, this violation can be used as evidence against plaintiff in determining the level of comparative fault.

Duty to Mitigate Damages

Sometimes, comparative fault is determined not only by the role plaintiff played in the crash, but in the way his or her actions – or inaction – failed to minimize damage.

Plaintiffs owe a duty to mitigate. In other words, there exists an obligation when one is injured to take reasonable steps to minimize the impact and reduce losses related to his or her injuries. This is true even when the accident itself was caused through no fault of your own.

Courts have long taken the approach that personal injury plaintiffs can be denied the right to recover portions of damages that could have reasonably been avoided.

In a motorcycle accident, the most common assertion of failure to mitigate is associated with failure to wear a helmet. M.G.L. 90 § 7 requires all motorcycle operators and riders to wear a helmet. If they do not and they are injured in a crash, damages may be reduced substantially if consideration is given to what the injuries would have been had the operator/rider been helmeted, as required by law.

Another common assertion of a failure to mitigate is refusal to follow doctors’ orders. For example, if a physician recommends surgery to treat a certain injury and patient refuses, he or she may have a difficult time recovering damages for any permanent or serious injuries that could have been lessened by having that surgery. In that situation, an injury attorney may examine the relative risk of the surgery, historical outcomes and other factors to argue in that case the treatment was not reasonable or necessary.

Contact the Law Offices of Jeffrey S. Glassman today for a free and confidential consultation.

Call (617) 367-2900 – NO FEE UNLESS SUCCESSFUL

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