Massachusetts General Laws

Mass. Gen. Laws ch. 231, § 85 (2026)

Comparative negligence; limited effect of contributory negligence as defense

✓ current as of July 2026

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Section 85. Contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made. In determining by what amount the plaintiff's damages shall be diminished in such a case, the negligence of each plaintiff shall be compared to the total negligence of all persons against whom recovery is sought. The combined total of the plaintiff's negligence taken together with all of the negligence of all defendants shall equal one hundred per cent.

The violation of a criminal statute, ordinance or regulation by a plaintiff which contributed to said injury, death or damage, shall be considered as evidence of negligence of that plaintiff, but the violation of said statute, ordinance or regulation shall not as a matter of law and for that reason alone, serve to bar a plaintiff from recovery.

The defense of assumption of risk is hereby abolished in all actions hereunder.

The burden of alleging and proving negligence which serves to diminish a plaintiff's damages or bar recovery under this section shall be upon the person who seeks to establish such negligence, and the plaintiff shall be presumed to have been in the exercise of due care.

Notes of Decisions

Cited in 296 cases (8 in the last 5 years), 1921–2025 · leading case: Poirier v. Town of Plymouth, 372 N.E.2d 212 (Mass. 1978).

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Poirier v. Town of Plymouth, 372 N.E.2d 212 (Mass. 1978). · cites it 6× “See G.L.c. 231, § 85, as appearing in St. 1969, c.”

Shantigar Found. v. Bear Mountain Builders, 804 N.E.2d 324 (Mass. 2004). · cites it 10× “Shantigar claims that the trial judge erroneously refused to permit the jury, when comparing liability pursuant to G. L. c. 231, § 85, to consider the negligence of a second tortfeasor with whom Shantigar had settled prior to trial.”

Flood v. Southland Corp., 616 N.E.2d 1068 (Mass. 1993). · cites it 8× “First, if the stabbing was intentional, Darcy's conduct would not be involved in the jury's comparative negligence assessment (G.L.c. 231, § 85 [1992 ed.]). Second, proof that Darcy intentionally rather than negligently stabbed the plaintiff would tend to increase the prospect…”

Correia v. Firestone Tire & Rubber Co., 446 N.E.2d 1033 (Mass. 1983). · cites it 6× “, that it should treat M.G.L. c. 231, § 85, as a comparative ‘fault’ statute, or, alternatively, that this court should apply common law contributory negligence principles to the breach of warranty count.”

Zeller v. Cantu, 478 N.E.2d 930 (Mass. 1985). · cites it 9× “He contends that: (1) the enactment of the Commonwealth's comparative negligence act, G.L.c. 231, § 85 (1984 ed.), modified G.L.”

Colter v. Barber-Greene Co., 525 N.E.2d 1305 (Mass. 1988). · cites it 6× “G.L.c. 231, § 85 (1986 ed.). Thus, in a negligence action, the trier of fact must focus on the conduct of both the defendant and the plaintiff *63 in determining the extent of each party's responsibility for the plaintiff's injuries.”

O'Sullivan v. Shaw, 726 N.E.2d 951 (Mass. 2000). · cites it 4× “Accordingly, he argues, the judge erred in concluding that the defendants owed no duty to the plaintiff due to the obvious nature of the risk, for it properly belongs to a jury to decide the issue of the defendants’ liability by applying statutorily mandated principles of…”

Cigna Ins. v. OY Saunatec, Ltd., 241 F.3d 1 (1st Cir. 2001). · cites it 3× “See Mass. Gen. Laws ch. 231 § 85. 13 Similarly, in a breach of warranty action, a defendant can raise the unreasonable use defense, arguing that though the plaintiffs use was foreseeable, “the plaintiffs unreasonable conduct in the face of a known defect was a breach of duty…”

Graci v. Damon, 374 N.E.2d 311 (Mass. App. Ct. 1978). · cites it 5× “The case was tried to a jury, *162 who returned a special verdict (as required by G. L. c. 231, § 85, as appearing in St. 1969, c.”

Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). · cites it 2× “14, § 156 (1964); Mass.Gen. Laws Ann. ch. 231, § 85 (Michie/Law.”

Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984). · cites it 2× “(11) Massachusetts, Mass.Gen.Laws Ann. ch. 231, § 85 (Michie/Law.”

Mathis v. Massachusetts Elec. Co., 565 N.E.2d 1180 (Mass. 1991). · cites it 3× “Thus, the plaintiff was barred, under the comparative negligence statute, G. L. c. 231, § 85 (1988 ed.), from recovering any damages from MEC.”

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