Can You Still File a Claim If You Were Partially at Fault?

One of the most common reasons people talk themselves out of pursuing a partially at fault car accident claim is the belief that if they did anything wrong – even something minor – they cannot recover anything. That assumption is wrong under Massachusetts law, and acting on it costs people real money. Massachusetts follows a system called modified comparative negligence. What that means in practice is that partial fault does not end your claim. What it does is affect how much you can recover – and the line between recoverable and not recoverable is drawn at a specific percentage.

Understanding where that line sits, how fault percentages get established, and what the law actually says about who has to prove what is worth knowing before making any assumptions about what your case is worth.

The Legal Framework – What MGL Chapter 231, Section 85 Actually Says

The rule is codified in Massachusetts General Laws Chapter 231, Section 85. The statute states that contributory negligence shall not bar recovery in any action to recover damages for negligence resulting in death or 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.”

Read that carefully. The statute does not say the plaintiff must be blameless. It says their fault must not be greater than the combined fault of the defendants. In a two-party accident, that means a plaintiff who is 50% at fault can still recover – their damages are reduced by 50%, but recovery is not barred. At 51%, recovery is barred entirely. That single percentage point is the dividing line the law draws, and it carries real consequences.

The statute also establishes how fault is calculated across multiple parties. The combined total of the plaintiff’s negligence and all of the defendants’ negligence equals one hundred percent. In cases with more than one defendant, the plaintiff’s fault is compared to the total negligence of all defendants together – not to each defendant individually.

The Burden of Proof Is Not on You

This is one of the most practically significant – and most misunderstood – provisions of the statute, and most people who have been in an accident have no idea it exists.

Under MGL c. 231, § 85, the burden of alleging and proving negligence which serves to diminish a plaintiff’s damages or bar recovery is on the person seeking to establish that negligence. The statute goes further: the plaintiff is presumed to have been in the exercise of due care.

This means the other driver’s insurer cannot simply claim you were at fault and have that assertion carry legal weight. To reduce what your claim is worth – or to bar your recovery entirely – they must prove your negligence. You do not have to disprove fault. They have to establish it. That presumption in your favor is a meaningful protection, and it shapes how comparative fault arguments have to be built and presented.

In negotiations, insurers will often assert shared fault as if it is established fact when it is not. Understanding that the burden runs the other way – that your fault must be proven, not merely asserted – matters when evaluating whether to accept an insurer’s fault assignment or push back against it.

What a Traffic Violation Does – and Does Not – Do to Your Claim

If you were cited for a traffic violation in connection with the accident, or if the other driver is claiming you violated a traffic law, MGL c. 231, § 85 has a specific answer to what that means legally.

The statute provides that the violation of a criminal statute, ordinance, or regulation by a plaintiff which contributed to the injury 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.”

In plain terms: a traffic violation is relevant. It can be used as evidence that you were negligent. But a traffic citation does not automatically end a claim or automatically establish that your fault exceeded the threshold. It is one piece of evidence, weighed alongside everything else.

The Assumption of Risk Defense Is Gone

Massachusetts General Laws Chapter 231, Section 85 also abolishes the assumption of risk as a defense in negligence actions. This is relevant because, before the statute’s current form, defendants could argue that a plaintiff who knowingly engaged in a risky activity – like driving in poor conditions – had assumed the risk of injury and therefore could not recover. That defense no longer exists in Massachusetts civil negligence cases. The analysis is comparative negligence, not whether the plaintiff should have anticipated the risk.

How Fault Percentages Actually Affect Compensation

The proportional reduction mechanism the statute describes is straightforward in structure but significant in effect. If a plaintiff is found to be 20% at fault, their damages are reduced by 20%. If they are found to be 40% at fault, their damages are reduced by 40%. At exactly 50%, they recover half their damages. At 51%, they recover nothing.

The dollars involved are not abstract. The difference between a 15% fault assignment and a 35% fault assignment on a serious personal injury claim is substantial – and it is exactly that gap that insurers frequently try to widen. Fault percentages in the claims process are not neutral determinations handed down from an impartial authority. They are the product of evidence, argument, and negotiation – and they are actively shaped by how the claim is built and defended.

Every piece of evidence that supports the other driver’s fault, and every piece that rebuts an inflated fault assignment against you, affects what number ends up attached to your name and what that means for your recovery.

How Fault Is Established – and Contested

Fault percentages do not arrive from nowhere. They are the product of an investigation that draws on everything available from the accident: the police report, the operator crash report filed with the Registry of Motor Vehicles, photographs from the scene, dashcam or surveillance footage, witness accounts, vehicle damage patterns, skid marks, physical evidence, and sometimes accident reconstruction analysis.

Insurers conduct their own investigation to support their client’s position. That investigation may include recorded statements, scene visits, and expert analysis – all oriented toward the outcome that serves their insured. The question of how much fault is assigned to you, and how much to the other driver, is informed by that process, and it is not immune to challenge.

Arguments that are commonly used to assign partial fault to an injured driver include: that they were traveling too fast for conditions even if within the speed limit; that they failed to observe traffic controls; that they reacted slowly; that their vehicle position contributed to the collision; or that they made a maneuver – a lane change, a turn, a merge – that set up the impact. Some of these arguments are factually supportable in a given case. Some are not. Whether a fault assignment accurately reflects the evidence – or whether it is inflated beyond what the facts actually support – is a question that requires analysis.

When Multiple Defendants Are Involved

The statute’s treatment of multiple defendants matters in cases where more than one party bears responsibility for the accident – a situation that arises more often than people expect, particularly in crashes involving commercial vehicles, construction zones, or hazardous road conditions.

In those cases, the plaintiff’s fault is compared not to each defendant individually, but to the combined fault of all defendants together. This is meaningful because a plaintiff with a 30% fault assignment in a case with two defendants who each bear 35% of the fault is below the threshold when their fault is measured against the combined 70% – even though their 30% exceeds either individual defendant’s share of 35%.

Joint and several liability – the doctrine that allows a plaintiff to recover the full amount of their damages from any one defendant, regardless of how fault is apportioned among defendants – is a related concept with its own history in Massachusetts. Its current application has been significantly limited by statute, and how it applies in a specific multi-defendant case depends on the facts and the specific percentages involved. It is worth raising with an attorney in any case where multiple parties share responsibility.

The Practical Reality of Comparative Fault in Negotiations

The proportional reduction mechanism makes fault percentages a direct lever in the claims process. This is not theoretical – insurers use comparative fault arguments as a negotiating tool, and they do so with full knowledge of how percentage shifts affect what a claim pays out.

An insurer who shifts fault attribution from 10% to 30% against an injured driver has effectively reduced what they owe on the claim. The insurer does not need to win in court for this to matter. If the injured driver accepts a settlement based on an inflated fault assignment – believing that their partial contribution to the accident is greater than it actually was – they have accepted less than the law entitles them to.

The first line of defense against this is understanding that the burden is on the other side to prove your fault – not on you to disprove it, and not on you to accept an assertion as established fact. The second is having the evidence assembled to support an accurate fault picture from the beginning of the claim.

Questions about how comparative fault may apply to your situation don’t have to go unanswered. Contact Larson Law Boston to discuss the specifics of your case with an attorney who handles Massachusetts car accident claims.

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