231 Mass. Gen. Laws § 85

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Daris v. Middlesex & Boston Street Railway Co. · filed 1922-06-26

His contributory negligence was an affirmative defence, the burden of proving which rested on the defendant. G. L. c. 231, § 85.

Section 85 places the burden of proving contributory negligence on the defendant.

Maidman v. Rose · filed 1925-11-23

The burden of proving contributory negligence is on the defendant. G. L. c. 231, § 85.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant.

Pitman & Brown Co. v. Eastern Massachusetts Street Railway · filed 1926-03-29

But in the case of the individual plaintiff the defendant had the burden of proving contributory negligence. G. L. c. 231, § 85.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant.

Cook v. Boston Elevated Railway Co. · filed 1926-05-26

It could not have been ruled that the burden of proving contributory negligence of the plaintiff, which rested on the defendant, had been maintained, and we do not understand the defendant so contends. G. L. c. 231, § 85.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Di Rienzo v. Goldfarb · filed 1926-10-18

His contributory negligence was an affirmative defence and the burden of proving it rested on the defendant. G. L. c. 231, § 85.

Section 85 places the burden on the defendant to show that an injured child failed to exercise the care ordinarily expected of a child her age.

Jean v. Nester · filed 1927-11-28

She was required to exercise the degree of care ordinarily to be expected from a child of her age, and the burden was upon the defendant to show that she did not use this degree of care. G. L. c. 231, § 85; Taking all the circumstances into account, including her age, her care was a question of fact for the jury.

Section 85 places the burden of proving contributory negligence on the defendant.

Smith v. Boston Elevated Railway Co. · filed 1929-03-04

Upon the issue of contributory negligence the burden of proof rested upon the defendant. G. L. c. 231, § 85.

Section 85 treats contributory negligence as a lack of due care causally connected to the plaintiff’s injury, whether or not the conduct was an independent wrong against the defendant.

O'Connor v. Hickey · filed 1929-09-11

But the essential factor in contributory negligence under said § 85 is an act wanting in due care which of itself has a causal connection with the injury suffered by the plaintiff, wholly regardless of the point whether it was an independent wrong against the defendant.

Section 85 places the burden of proving contributory negligence on the defendant.

Austin v. Eastern Massachusetts Street Railway Co. · filed 1929-12-30

defendant has sustained the burden imposed on him by-statute of proving contributory negligence- — -want of due care (O’Connor v. Hickey, 268 Mass. 454) — on the part of the plaintiff. G. L. c. 231, § 85.

Section 85 places the burden of proving contributory negligence on the defendant.

Farley v. Edward E. Tower Co. · filed 1930-05-26

It could not have been ruled as matter of law that the dealer’s burden of proving contributory negligence on the part of the plaintiff was sustained. G. L. c. 231, § 85. Her testimony, by which alone she was bound on this aspect of the case, that during the water-waving process she felt the heat, asked for a change in the process, which was made, and was told to let the attendant know if she felt the heat again, did not justify such a ruling.

Section 85 places the burden of proving contributory negligence on the defendant.

Kirby v. Keating · filed 1930-05-27

The burden of proving contributory negligence was on the defendant. G. L. c. 231, § 85.

Section 85 places on the defendant the burden of affirmatively proving that the plaintiff failed to exercise due care.

DuBois v. Powdrell · filed 1930-05-27

It could not have been ruled as matter of law that the defendant had sustained the burden imposed on him by G. L. c. 231, § 85, of proving affirmatively that the plaintiff failed to exercise due care.

Section 85 places the burden of proving contributory negligence on the defendant.

Boni v. Goldstein · filed 1931-09-09

It could not have been ruled as matter of law that the defendant sustained the burden, placed upon him by G. L. c. 231, § 85, of proving contributory negligence on the part of the plaintiffs’ intestate.

Section 85 places the burden of proving contributory negligence on the defendant.

Palomebella v. Foss · filed 1931-11-02

The burden of proving contributory negligence rested upon the defendant. G. L. c. 231, § 85.

Section 85 places the burden of proving contributory negligence on the defendant.

Podwapinska v. Teixeira · filed 1931-12-02

It could not have been ruled on the evidence that the defendant had maintained the burden of proving contributory negligence on the part of the plaintiff. G. L. c. 231, § 85.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant.

Spain v. Oikemus · filed 1932-03-28

It could not rightly have been -ruled that the defendant sustained the burden cast on him by G. L. c. 231, § 85, of proving contributory negligence — ■ want of due care — on the part of the plaintiff.

Section 85 places the burden of proving the injured person’s contributory negligence on the defendant.

Perry v. Stanfield · filed 1932-03-29

It could hardly have been ruled as matter of law on all the evidence that the intestate was in the exercise of due care, or that the burden of proving contributory negligence of the intestate resting on the defendant had not been sustained. G. L. c. 231, § 85. Commonly, the question of due care or contributory negligence of the injured person presents a question of fact.

Section 85 places the burden of proving contributory negligence on the defendant.

Becker v. Eastern Massachusetts Street Railway Co. · filed 1932-06-27

The defendant properly does not argue that the evidence as matter of law required a finding that its burden of proving contributory negligence on the part of the plaintiff was sustained. G. L. c. 231, § 85.

Section 85 places the burden on the defendant to prove that the plaintiff failed to exercise due care.

Griffin v. Feeney · filed 1932-06-28

Since all of the facts bearing on Griffin’s conduct in the matter of using care did not appear in the evidence, the trial judge could not have ruled, as matter of law, that the defendant had maintained the burden of proving that Griffin was not in the exercise of due care. G. L. c. 231, § 85.

Section 85 places the burden of proving contributory negligence on the defendant; a child's failure to testify that she looked before crossing does not establish that defense.

Dirsa v. Hamilton · filed 1932-10-26

Moreover, the testimony of the defendant and his wife in' respect to the manner of her crossing might be entirely disbelieved; and the absence of affirmative testimony by the plaintiff or by witnesses in her behalf that she did look and that looking she relied to some extent for her safety on the due care of the defendant, does not take the place of affirmative proof on the part of the defendant that the plaintiff was guilty of contributory negligence in that she did not use the degree of care for her own safety that a normal child of her age should exercise.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Horneman v. Brown · filed 1934-03-28

The contributory negligence of the plaintiff was an affirmative defence and the burden of proving it rested upon the defendant. G. L. (Ter. Ed.) c. 231, § 85. ... Although the question is somewhat close, we think that it could not rightly have been ruled as matter of law that the burden of proof had been made out.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant in a personal injury action.

Patrican v. Garvey · filed 1934-06-23

It is in substance and effect a finding that the defendant, on the evidence and without invoking any violation of the criminal law, had failed to prove the affirmative defence of contributory negligence of the plaintiff imposed on every defendant in an action to recover damages for injuries to the person. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant.

Kelley v. Goldberg · filed 1934-10-23

The burden of proving contributory negligence — want of due care — of the plaintiff was on the defendants. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden on the defendant to prove contributory negligence by credible evidence.

Sarna v. American Bosch Magneto Corp. · filed 1935-04-01

The question of contributory negligence on the part of the plaintiffs’ intestates was for the jury. There was no evidence as to what they were doing at the time when they were overcome. The plaintiffs are entitled to the full benefit of G. L. (Ter. Ed.) c. 231, § 85, and the burden of proof rested upon the defendant to show negligence of the intestates by credible evidence.

Section 85 places on the defendant the burden of proving that a child failed to exercise the care expected of a child of the same age under like conditions.

Stacy v. Dorchester Awning Co. · filed 1935-04-03

And the plaintiff was entitled to the benefit of G. L. (Ter. Ed.) c. 231, § 85, which placed upon the defendant the burden of proving that the boy failed to exercise the care of a child of his age under like conditions.

Section 85 places the burden of proving contributory negligence on the defendant.

Lincoln v. New York, New Haven & Hartford Railroad · filed 1935-05-22

The burden of proof was upon the defendant to prove either the contributory negligence of the driver of the automobile, G. L. (Ter. Ed.) c. 231, § 85, or her violation of the statute G. L. (Ter. Ed.) c. 90, § 15.

Section 85 applies to a wrongful-death negligence action in which the defendant bears the burden of proving the decedent’s contributory negligence.

Fruth v. Dunbar · filed 1936-02-06

It could not rightly have been ruled as matter of law that the burden of proving contributory negligence on the part of the deceased had been sustained by the defendants, Mercier v. Union Street Railway, 230 Mass. 397, 404, or that G. L. (Ter. Ed.) c. 231, § 85, was inapplicable.

Section 85 requires sufficient evidence to support a defense that the plaintiff’s own negligence caused the injury.

Hunt v. Lane Bros. · filed 1936-06-29

Assuming in favor of the defendant that its requests for rulings “At the end of the evidence” are the equivalent of a statement that the requests for rulings were presented to the court at the close of all the material evidence, it is obvious that the bill of exceptions shows no sufficient evidence to support so much of the answer as alleges “that the injuries alleged were caused in whole or in part by plaintiff's own negligence.” G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden of proving a plaintiff’s lack of due care on the defendant.

Engel v. Boston Ice Co. · filed 1936-10-27

The burden of proof that the plaintiff failed to exercise due care rested on the defendant. G. L. (Ter. Ed.) c. 231, § 85. The testimony of the plaintiff, by which he is bound, and the other evidence in the case upon which he must rely to establish his case, did not as matter of law require a finding that he was guilty of contributory negligence.

Section 85 places the burden of proving contributory negligence on the defendant and presumes that the plaintiff exercised due care.

Rudomen v. Green · filed 1938-02-28

The burden of proving contributory negligence on the part of the plaintiff rested upon the defendant. The plaintiff was presumed to be in the exercise of due care. G. L. (Ter. Ed.) c. 231, § 85. It could not rightly have been ruled as matter of law that the plaintiff contributed to his injury by his negligence.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Leveillee v. Wright · filed 1938-05-26

Contributory negligence, if any, of the deceased was an affirmative defence and the burden of proving it rested upon the defendant. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden on the defendant to prove that the plaintiff failed to exercise the care required by law.

Schneider v. DeChristopher · filed 1938-10-03

It could not have been ruled as matter of law that the defendant had sustained the statutory burden of proving that the plaintiff failed to exercise the care which the law required.

Section 85 places the burden of proving contributory negligence on the defendant; that rule is procedural.

Herman v. Sladofsky · filed 1938-12-05

The burden of proving contributory negligence was upon the defendant. G. L. (Ter. Ed.) c. 231, § 85. That statute relates to procedure and not to substantive rights.

Section 85’s burden-of-proof rule applies to a passenger’s negligent surrender of care because that conduct is a form of contributory negligence.

Bessey v. Salemme · filed 1939-01-31

If voluntary surrender of one’s care is something apart from his own due care, it cannot be that our statute (G. L. [Ter. Ed.] c. 231, § 85) as to the burden of proof on the issue of the plaintiff’s due care applies; but if the voluntary surrender must be a negligent one to be regarded as contributory negligence, then there is no difficulty in its application.

Section 85 places the burden of proving a plaintiff's contributory negligence on the defendant.

Campbell v. Cairns · filed 1939-04-11

The burden of proving that the plaintiff was guilty of contributory negligence rested on the defendant. G. L. (Ter. Ed.) c. 231, § 85. There is nothing in the testimony of the plaintiff or in any evidence by which she is bound to require a ruling that she was guilty of contributory negligence.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Pond v. Somes · filed 1939-04-11

Contributory negligence, if any, of the Pond boy was an affirmative defence and the burden of proving it rested upon the defendant. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden of proving a child's contributory negligence on the defendant when the child is capable of exercising care for their own safety.

Friedman v. Berthiaume · filed 1939-05-23

Those plaintiffs were entitled to the benefit of G. L. (Ter. Ed.) c. 231, § 85, which put upon the defendant the burden of proving that they failed to exercise the care of ordinarily prudent children of the same ages in the same circumstances.

Section 85 places the burden of proving contributory negligence on the defendant.

Snow v. Boston Elevated Railway Co. · filed 1939-06-29

The burden of proving contributory negligence on the part of the plaintiff rested on the defendant, G. L. (Ter. Ed.) c. 231, § 85, and a verdict for the defendant could be directed by the judge only if the evidence by which the plaintiff was bound required a conclusion as matter of law that she was guilty of contributory negligence.

Section 85 places the burden of proving contributory negligence on the defendant.

Nicholson v. Babb · filed 1939-10-27

The trial judge could not have ruled as matter of law that the defendant had maintained the burden of proving that the deceased was contributorily negligent.

Section 85 places the burden of proving contributory negligence on the defendant.

Skidd v. Quattrochi · filed 1939-11-29

The burden of proving contributory negligence was on the defendant, G. L. (Ter. Ed.) c. 231, § 85, and we think that it cannot be said as a matter of law that the evidence did not warrant the finding of the judge that the plaintiff was not guilty of contributory negligence.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant.

Sullivan v. Town of Saugus · filed 1940-01-31

The burden of proving contributory negligence on the part of the plaintiff rested upon the defendant, G. L. (Ter. Ed.) c. 231, § 85, and a verdict for the defendant on this ground could be directed by the judge only if the evidence by which the plaintiff was bound required a conclusion, as matter of law, that the plaintiff was guilty of contributory negligence.

Section 85 places on the defendant the burden of proving unlawful vehicle registration when it is offered as evidence of contributory negligence.

Burns v. Winchell · filed 1940-02-27

Where, as here, absence of legal registration could be shown under the pleadings as evidence of contributory negligence — as well as in cases where it is specially pleaded — the burden of proving that the motor truck was not registered as required by law was on the defendant.

Section 85 makes a plaintiff’s contributory negligence an affirmative defense.

Zawacki v. Finn · filed 1940-10-30

The negligence of the plaintiff was an affirmative defence. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 makes contributory negligence an affirmative defence that the defendant must plead and prove.

Sadak v. Tucker · filed 1941-10-30

Contributory negligence is an affirmative defence to be set up in the answer and proved by the defendant. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 gives a plaintiff the benefit of the due care rule and places the burden of proving contributory negligence on the defendant.

Lucier v. Norcross · filed 1941-10-31

The plaintiff is entitled to the benefit of the due care statute, G. L. (Ter. Ed.) c. 231, § 85. We cannot say that any negligent conduct on the part of the deceased has been proved. The burden of proving such conduct was upon the defendant.

Section 85 places the burden of proving the plaintiff’s own contributory negligence on the defendant; a plaintiff chargeable with another person’s conduct must prove that person was not negligent.

Mendolia v. White · filed 1943-02-24

The burden of proving that Mendolia himself was contributorily negligent rested upon the defendant by virtue of G. L. (Ter. Ed.) c. 231, § 85. ... The due care statute creating a presumption in favor of the plaintiff and putting the burden upon the defendant of proving the negligence of the plaintiff extends only to the personal conduct of the plaintiff himself, and leaves unaffected the principles of the common law that a plaintiff who is chargeable with the conduct of a third person must prove that the latter was not negligent.

Section 85 places the burden of proving contributory negligence on the defendant in personal injury actions but does not apply to actions for consequential damages.

Holden v. Bloom · filed 1943-06-30

G. L. (Ter. Ed.) c. 231, § 85. In actions for consequential damages, however, the' statute does not apply. The common law still applies to such actions, and the plaintiff is required to prove as an affirmative element that the person injured was in the exercise of due care when the injuries were sustained.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove; gaps in the evidence on that issue favor the plaintiff.

Duff v. Webster · filed 1943-11-30

Under G. L. (Ter. Ed.) c. 231, § 85, contributory negligence is an “affirmative defence” to be “proved by the defendant.” It follows that in cases to which this statute applies, on the issue of contributory negligence, the circumstances not covered by evidence are assumed to- have been favorable to the plaintiff.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant.

Quinby v. Boston & Maine Railroad · filed 1945-06-28

The burden of proving contributory negligence of the plaintiff was on the defendant. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 makes a plaintiff’s contributory negligence an affirmative defense that the defendant must plead and prove.

Dennehy v. Jordan Marsh Co. · filed 1947-02-27

The negligence of the plaintiff was an affirmative defence to be set up and proved by the defendant, G. L. (Ter. Ed.) c. 231, § 85, and the burden was upon the defendant to prove that the plaintiff failed to exercise the care of an ordinary child of his age.

Section 85 places the burden of proving contributory negligence on the defendant.

Hinckley v. Capital Motor Transportation Co. · filed 1947-04-02

It could not have been ruled on this evidence that the defendant had maintained the burden of proving contributory negligence on the part of the plaintiff. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden of proving contributory negligence on the defendant.

Pelland v. D'Allesandro · filed 1947-06-04

The burden of establishing contributory negligence rested on the defendant. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 placed the burden of proving contributory negligence on the defendant in the injured plaintiff’s claim, but did not give that benefit to the father’s claim for consequential damages under the law applicable to this case.

Clouatre v. Lees · filed 1947-10-31

It is true that the father of the plaintiff, under his count for consequential damages, was not entitled, as was the plaintiff himself, to the benefit of G. L. (Ter. Ed.) c. 231, § 85, casting the burden of proof of contributory negligence upon the defendant. The father was required to prove that the plaintiff was in the exercise of due care when his injuries were sustained.

Section 85 places the burden of proving contributory negligence on the defendant.

Boutillier v. Wesinger · filed 1948-03-08

With respect to contributory negfigence of Boutillier the burden of proof was upon the defendant. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden of proving contributory negligence on the defendant.

Brooks v. Eliot Savings Bank · filed 1949-12-30

It could not be ruled as matter of law that the plaintiff was guilty of contributory negligence. The burden of proof of that was on the defendant. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Carlson v. Palley · filed 1950-11-09

There was likewise no error in submitting the action to the jury on the question of contributory negligence of the plaintiff.. This was an affirmative defence with the burden on the defendant to prove it. G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1.

Section 85 places the burden of proving contributory negligence on the defendant; a verdict for the defendant cannot be directed if the accident could have happened without the plaintiff’s negligence.

Jones v. Harrar · filed 1950-11-29

Under G. L. (Ter. Ed.) c. 231, § 85, as amended, the defendant had the burden of proof of contributory negligence. A verdict for the defendant could not have been directed if the accident could have happened without negligence on the part of the plaintiff.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Hoban v. Trustees of New York, New Haven & Hartford Railroad · filed 1950-12-07

Since the adoption of the statute in 1914, now G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1, we have uniformly held that contributory negligence, if any, of the plaintiff is an affirmative defence, with the burden of proving it resting on the defendant.

Section 85 places the burden of proving a plaintiff’s lack of care on the defendant.

Ryder v. Robinson · filed 1952-09-11

The question of the plaintiff’s care was also for the jury. On this issue the burden of proof was upon the defendant. G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1.

Section 85 places the burden of proving a plaintiff's contributory negligence on the defendants.

Salvato v. DiSILVA TRANSPORTATION CO. INC. · filed 1952-09-25

The burden of proof of the contributory negligence of Concetto was on the defendants. G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1.

Section 85 places the burden of proving contributory negligence on the defendant.

Kelly v. Mahoney · filed 1952-10-29

The burden of proving contributory negligence was on the defendant. G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Sutherland v. McGee · filed 1952-12-02

By reason of G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1, contributory negligence is a matter of affirmative defence to be proved by the defendant.

Section 85 places the burden on the defendant to prove affirmatively that the plaintiff failed to exercise due care.

Dineen v. Falbo · filed 1954-06-25

The burden is on the defendant by statute to prove affirmatively that the plaintiff failed to exercise due care. G. L. c. 231, §85. It rarely can be ruled as a matter of law that the defendant has sustained that burden.

Section 85 requires a defendant to plead and prove contributory negligence as an affirmative defense, including when the defendant seeks to impute a driver's negligence to the vehicle owner.

Clougherty v. Pridham · filed 1958-11-07

But whether this driver was contributorily negligent, so that her negligence could be imputed to the owner, was an affirmative defence to be set up in the answer and proved by the defendant. G. L. c. 231, § 85, as amended through St. 1947, c. 386, § 1.

Section 85 places the burden on the defendant to prove the plaintiff lacked due care in a common law negligence claim.

Borden v. New York, New Haven & Hartford Railroad · filed 1959-05-20

The burden is on the •defendant to show the lack of care under the common law counts (G. L. c. 231, § 85) and also under the statutory counts.

Section 85 places the burden of proving a plaintiff's contributory negligence on the defendant.

Banaghan v. Dewey · filed 1959-12-11

In the Peterson case the defendant urges that the plaintiff elevator operator was contributorily negligent. The burden of showing this was upon the defendant, G. L. c. 231, § 85, and despite evidence from which it could be inferred that he was aware of the defective condition of the elevator, we cannot rule as a matter of law that he was negligent in continuing to operate it.

Section 85 places the burden on the defendant to prove the plaintiff's lack of due care.

Weir v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD · filed 1959-12-11

Under our law, which governs burden of proof, Levy v. Steiger, 233 Mass. 600, the burden is on the defendant to prove the plaintiff's lack of due care. G.L.c. 231, § 85.

Section 85 places the burden of proving contributory negligence on the defendant, who need only show that the plaintiff’s negligence contributed to the injury.

Summering v. Berger Realty, Inc. · filed 1962-04-02

Under Gr. L. c. 231, § 85 (as amended through St. 1952, e. 533, § 1), the defendants had the burden of proving that Summering was contributorily negligent. ... In order to establish the defence of contributory negligence it need only be shown that the plaintiff’s negligence contributed to cause the injury.

Section 85 makes contributory negligence an affirmative defense that the defendant bears the burden of proving.

Rugnetta v. Alden's, Inc. · filed 1964-09-09

Contributory negligence is an affirmative defense. G. L. c. 231, §85. The burden of proof that the plaintiff’s negligence contributed to the accident is on the defendant.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove.

Archambault v. Henschke · filed 1967-11-10

Contributory negligence, if any, was an affirmative defence and the burden of proving it rested upon the defendant. G.L. c. 231, § 85.

Section 85 does not require a finding of contributory negligence merely because a pedestrian failed to see an oncoming car.

Mulkern v. Lambert · filed 1968-11-05

Nor does the evidence require a finding of contributory negligence, G. L. c. 231, § 85, on grounds of the pedestrian’s lack of care or his mere failure to see the defendant’s oncoming car.

Section 85 places the burden of proving contributory negligence on the defendant.

Halley v. Hugh Nawn, Inc. · filed 1969-05-06

Under G. L. c. 231, § 85, the defendants had the burden of proving contributory negligence. ... The questions of contributory negligence and assumption of the risk were for the jury to determine.

Section 85 places the burden of proving contributory negligence on the defendant; only rarely is that burden met as a matter of law.

Hagen v. Was · filed 1969-07-18

It said: “Under G.L.c. 231, § 85, the defendants had the burden of proving contributory negligence . . . Only in rare cases can it be ruled as a matter of law that (this burden has) been sustained.” ... The case under consideration does not appear to be one of those rare cases.

Section 85 places the burden of proving contributory negligence on the defendant and presumes the plaintiff exercised due care when there is no evidence to the contrary.

Plescia v. Cavanaugh · filed 1969-10-08

G.L. c. 231, § 85 places the burden of proof of contributory negligence on the defendant. The report contains no evidence of contributory negligence on the part of the plaintiff and she is therefore presumed to be in the exercise of due care.

Section 85 places the burden of establishing contributory negligence on the defendant.

Marotta v. Zayre Department Store · filed 1971-07-01

There was no error in the denial of request #2. The burden is on the defendant to establish contributory negligence and the evidence there is no evidence of any negligent act of the plaintiff. G.L.c.231, §85.

Section 85 places the burden of proving contributory negligence on the defendant.

Calderone v. Wright · filed 1971-10-29

The burden of proof as to his contributory negligence was on the defendant. G. L. c. 231, § 85. We cannot say as a matter of law that this burden was sustained.

For a cause of action arising before January 1, 1971, a plaintiff’s contributory negligence barred recovery under the earlier version of § 85.

Becker's Inc. v. Breyare · filed 1972-02-09

Under the law applicable on the date of the fire, March 19, 1964, G. L. c. 231, § 85, as amended through St. 1952, c. 533, § 1, this contributory negligence of Becker’s Inc. was an absolute bar to its recovery from either Breyare or Poirier.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant; only rarely can that burden be met as a matter of law.

Goldstein v. Gontarz · filed 1974-03-20

The burden of establishing that the plaintiff was contributorily negligent was on the defendants. G.L.c. 231, § 85 (prior to amendments by St. 1969, c. 761, and St. 1973, c. 1123). It is only in a "rare" case in an exceptional situation that it can be ruled as matter of law that a proponent has met this burden. Halley v. Hugh Nawn, Inc. 356 Mass. 28, 30 (1969). Joyce v. New York, N.H. and H.R.R. 301 Mass. 361, 363 (1938). We do not think this is such a case.

As it read at the time, § 85 barred a plaintiff from recovering if the plaintiff was negligent.

Maher v. General Motors Corp. · filed 1976-05-04

As it read at the time, G. L. c. 231, § 85, barred recovery on the part of the plaintiff where he himself was negligent. Since it has been determined that the negligence of Maher was a cause of the accident, the application of the doctrine of collateral estoppel would operate to bar him in any new trial of this action.

Under comparative negligence, a child’s contributory negligence is no longer an automatic bar to recovery.

Killeen v. Harmon Grain Products, Inc. · filed 1980-12-15

There must, of course, be a cut-off age, not because of its bearing on the child’s contributory negligence, which does not act as a bar to recovery in this jurisdiction (see G. L. c. 231, § 85, as inserted by St. 1969, c. 761, § 1, and, by the terms of St. 1973, c. 1123, § 2, in effect as to causes of action arising prior to January 1, 1974), but because of its bearing on the question of due care of the retailer, who must, at some point, be justified as matter of law in assuming that his customer shoulders full responsibility for the proper use of the product.

Under the version of § 85 in effect at the time of the accident, a plaintiff could not recover if his own negligence contributed to the injury; whether the officer was contributorily negligent was for the jury.

Foley v. Kibrick · filed 1981-08-27

Whether Foley’s failure to observe the Kibrick vehicle amounted to contributory negligence presents similar factual issues properly resolved by a jury.

Section 85 places the burden of proving contributory negligence by a preponderance of the evidence on the party asserting it.

Corriveau v. United States · filed 1993-09-21

As the party asserting the claim of contributory negligence, the burden is on the United States to establish the negligence of Mr. Corriveau, Sr. by a preponderance of the evidence.

Section 85 allows a plaintiff who is equally at fault with the defendant to recover 50 percent of proven damages.

Bababekov v. Feldman · filed 1988-03-03

The plaintiff correctly states the principle of law relative to the matter of comparative negligence under G.L. c.231, §85 .. . namely, where two parties are equally at fault, the plaintiff has a right to recover 50 percent of the proven damages.

Section 85 permits a comparative negligence defense against a negligence claim when the plaintiff’s constitutional and civil rights claims were dismissed before trial.

Boorstein v. City of Boston · filed 1990-03-06

The motion judge, prior to the trial, dismissed the plaintiffs’ claims of trespass and constitutional and civil rights violations and reduced their action to a negligence claim. The plaintiffs did not object to the motion judge’s ruling. Therefore, the defense of comparative negligence was available, both procedurally and substantively, to the city.

Section 85 requires wrongful death damages, including damages sought by family members, to be reduced in proportion to the decedent’s contributory negligence.

Tobin v. Norwood Country Club, Inc. · filed 1996-02-22

The language of the statute is plain and leaves no room for the plaintiffs’ argument. The Superior Court judge below correctly ruled that all damages, not just those of the estate on behalf of the decedent herself, must be reduced in accordance with c. 231, § 85.

Section 85 bars recovery on a negligence claim when the plaintiff’s contributory negligence exceeds the defendants’ combined negligence; otherwise, it reduces the award by the plaintiff’s share of fault.

Kramer v. Acton Toyota, Inc. · filed 2004-11-02

If the plaintiff proves negligence by defendants Acton and TMS, then G.L.c. 231, §85 requires that a defense verdict shall be entered if Shirley Kramer’s contributory negligence exceeds the combined negligence of the defendants. Conversely, if any negligence by Shirley Kramer is less than or equal to the combined negligence of Acton and TMS, the award will be reduced by whatever percentage of responsibility is allocated to her.

Section 85 does not bar an argument that the plaintiff’s injuries would have occurred without the defendants’ conduct, even when that argument refers to the plaintiff’s condition or conduct.

Prouty v. Thippanna · filed 2021-08-16

With respect to the final grounds for a new trial, I find that Defendants’ counsel did not argue Plaintiff’s contributory negligence or assumption of the risk in his closing statements. Both defenses have been abolished in negligence cases under Massachusetts law (the applicable substantive law in this case), but Attorney Malley hewed to the but-for causation standard that I included in the jury instructions as set forth by the Supreme Judicial Court in Doull v. Foster. See M.G.L. c. 231 § 85; 487 Mass. 1 (2021).

Section 85 aids a plaintiff on due care when the court considers whether contributory negligence can be decided as a matter of law.

Mahoney v. New York, New Haven & Hartford Railroad · filed 1921-10-13

As regards the issue of the due care of the plaintiff aided by St. 1914, c. 553; G. L. c. 231, § 85, it is obvious it could not be ruled as a matter of law that the plaintiff was guilty of contributory negligence.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant; whether that burden was met can be a question for the jury.

Bishop v. Pastorelli · filed 1921-11-22

It could not have been ruled as matter of law that the burden of proving contributory negligence of the plaintiff, now resting on the defendant, was sustained. ... Without narrating the evidence at length, it is enough to say that this aspect of the case presented a question of fact for the consideration of the jury.

Section 85 does not require jury submission when the undisputed facts establish contributory negligence or lack of due care.

Rooney v. Merliss · filed 1927-02-28

It is not required by St. 1914, c. 553, now G. L. c. 231, § 85, that the case be submitted to the jury.

Section 85 places the burden of proving a plaintiff’s contributory negligence on the defendant; conflicting evidence can prevent a ruling that the burden was met as a matter of law.

Goulding v. Boston Elevated Railway Co. · filed 1928-01-05

Upon the conflicting evidence it could not have been ruled as matter of law that the defendant’s burden of proving contributory negligence of the plaintiff was sustained.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove and ordinarily leaves the issue to the jury.

O'Connell v. McKeown · filed 1930-02-25

Contributory negligence in all actions for injuries to person or property is an affirmative defence with the burden resting on the defendant, G. L. c. 231, § 85, and with rare exceptions presents an issue of fact for the jury.

Section 85 places the burden of proving a deceased pedestrian’s lack of due care on defendants; the issue goes to the jury when the evidence does not establish all relevant facts.

Mulroy v. Marinakis · filed 1930-05-27

All of the facts bearing on the due care of the deceased were not presented by the evidence, and the question whether the defendants had maintained the burden of proof on this issue was rightly submitted to the jury. G. L. c. 231, § 85.

Section 85 places the burden of proving contributory negligence on the defendant; whether that burden is met is for the jury.

Gould v. Boston & Maine Railroad · filed 1933-02-20

Before the enactment of St. 1914, c. 553, now G. L. (Ter. Ed.) c. 231, § 85, the action could not have been sustained, as the evidence was not sufficient to authorize a finding that the intestate was actively and actually in the exercise of due care, but under the statute the burden of proving contributory negligence rested on the defendant. Whether that burden had been sustained was for the jury.

Section 85 places the burden of proving contributory negligence on the defendant; a directed verdict is improper when the evidence does not establish it as a matter of law.

Sooserian v. Clark · filed 1934-06-25

It could not have been ruled as matter of law that on the testimony of the plaintiff, by which he is bound except as he is entitled to the benefit of any more favorable explanation of the accident presented by the evidence, the burden resting on the defendants of proving contributory negligence on the part of the plaintiff had been sustained. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 treats contributory negligence as an affirmative defense that is rarely established as a matter of law.

Mosher v. Hayes · filed 1934-10-03

The only question in this case is whether the affirmative defence of contributory negligence on the part of the plaintiff was established as matter of law. ... G. L. (Ter. Ed.) c. 231, § 85. ... A careful examination of it convinces us that there was no error of law in denying the request for ruling that a finding be entered for the defendant.

Section 85 makes contributory negligence an affirmative defense for the defendant to plead and prove, but it does not require jury submission when the evidence establishes that defense as a matter of law.

Joyce v. New York, New Haven & Hartford Railroad · filed 1938-10-27

In such a case the provision of G. L. (Ter. Ed.) c. 231, § 85, making contributory negligence “an affirmative defence to be set up in the answer and proved by the defendant” is not sufficient to entitle the plaintiff to have the case submitted to the jury.

Section 85 requires the defendant to affirmatively establish contributory negligence before it can defeat a negligence claim as a matter of law.

Snow v. Nickerson · filed 1939-09-14

Enough has been said to show that the case comes within the scope of G. L. (Ter. Ed.) c. 231, § 85, and that it could not be said as matter of law that the defendant had affirmatively shown that the accident was caused by the contributory negligence of the intestate.

Section 85 leaves a plaintiff’s due care for the jury when the evidence does not establish its absence as a matter of law.

Lynch v. First National Bank · filed 1941-07-03

Nor could it have been ruled properly on the evidence that the plaintiff was not in the exercise of due care at the time of the accident. G. L. (Ter. Ed.) c. 231, § 85.

Section 85’s burden-of-proof rule does not prevent a ruling that the plaintiff is barred as a matter of law when the decedent’s conduct and the circumstances establish the bar.

Rice v. Boston & Maine Railroad · filed 1944-06-27

Enough appears of the conduct of the deceased and of the circumstances of his operation of the truck upon which the plaintiff relies to bring the case out of the scope of G. L. (Ter. Ed.) c. 231, § 85.

Section 85 does not bar recovery for contributory negligence when the evidence viewed most favorably to the plaintiff does not establish it as a matter of law.

Connell v. Kelleher · filed 1944-12-27

On the evidence in its aspect most favorable to the plaintiff, it could not have been ruled that shé was guilty of contributory negligence. See G. L. (Ter. Ed.) c. 231, § 85.

Section 85 does not permit a ruling of contributory negligence as a matter of law when the evidence allows a finding that the injured person acted with due care.

Mazzaferro v. Dupuis · filed 1947-11-04

It could not be ruled that the intestate was guilty of contributory negligence. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 does not make a pedestrian contributorily negligent as a matter of law merely because she walked near traffic after seeing an approaching bus.

McComb v. New England Transportation Co. · filed 1950-01-10

Likewise it could not have been ruled that as a matter of law the plaintiff was guilty of contributory negligence. G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove; the issue goes to the jury unless the evidence permits only a finding of contributory negligence.

Rice v. Boston & Maine Railroad · filed 1951-06-06

Since the adoption of the statute in 1914, now G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1, contributory negligence is an "affirmative defence to be . . . proved by the defendant.” The plaintiff makes out a case for the jury by proving injury and damage due to the negligence of the defendant unless "facts which are undisputed or indisputable” or "evidence by which the plaintiff is bound” shows that contributory negligence is the only rational inference.

Section 85 does not bar recovery for contributory negligence as a matter of law when the plaintiff’s conduct does not establish that defense.

Peckham v. Capitol Springfield Realty Co. · filed 1954-11-18

We see nothing in the conduct of the plaintiff that amounted to contributory negligence as matter of law. G. L. (Ter. Ed.) c. 231, § 85, as appearing in St. 1947, c. 386, § 1.

Section 85 makes contributory negligence an affirmative defense that the defendant must prove and the jury must decide.

Sullivan v. Hamacher · filed 1959-05-14

The defendant argues that the deceased was guilty of contributory negligence, but under G. L. c. 231, § 85, as amended through St. 1952, c. 533, § 1, this is a matter of affirmative defence to be proved by the defendant and determined by the jury.

Section 85 no longer requires special jury questions in comparative negligence cases; the trial judge may decide whether to use them.

Kettinger v. Black & Decker Manufacturing Co. · filed 1982-03-22

Under our rule 49, whether to ask special questions appears to be discretionary with the trial judge. Particularly should this be the case where the “comparative negligence” of the parties must be appraised. Compare G. L. c. 231, § 85, as appearing in St. 1969, c. 761, § 1, where such special questions were required, with ... § 85, as amended in St. 1973, c. 1123, § 1, removing the requirement.

Section 85 leaves comparative negligence to the jury, including whether the plaintiff acted reasonably in an emergency.

Jordan v. Goddard · filed 1982-12-01

The jury were given proper instructions on comparative negligence, a matter for the jury’s determination.

Section 85 allows a plaintiff to recover on a negligence claim unless the plaintiff’s negligence exceeds that of the persons from whom recovery is sought.

Richard v. American Manufacturing Co. · filed 1986-02-27

Under the negligence count, the plaintiff is not barred unless his negligence is greater than the negligence of the persons against whom recovery is sought. See G. L. c. 231, § 85.

Section 85 requires the jury to assess comparative negligence when a plaintiff contributed to an injury; an open and obvious danger does not itself require denial of recovery.

Callahan v. Boston Edison Co. · filed 1987-07-07

Edison protests that it was entitled, as well, to an instruction that, if the level of the water was open and obvious, the jury might find Callahan contributorily negligent and, in consequence, might deny recovery. The requested instruction did not state a correct principle of law. See G. L. c. 231, § 85. Whether a danger is open and obvious has to do with the duty of the defendant, not the negligence of the plaintiff.

Section 85 does not require a trial judge to make express, written findings concerning comparative negligence.

Luce v. Sillari · filed 1990-12-20

Similarly, G.Lc. 231, §85 does not require a trial judge to make express, written findings concerning comparative negligence.

Section 85 does not require a special finding of the percentage by which a plaintiff’s negligence reduces damages.

McGovern v. Stop & Shop Companies, Inc. · filed 1994-03-08

Although the Court made no special finding with respect to the amount the plaintiff’s damages were diminished in proportion to the amount of negligence attributable to plaintiff, no such special finding has been required since the 1974 amendment to G.L.c. 231, §85.

Section 85 leaves comparative negligence to the jury when a rational jury could find the plaintiff less than 50% at fault.

Wilson v. Copen · filed 2001-03-30

Finally, we think that a jury viewing the case in this way rationally could conclude that Wilson was less than 50% comparatively negligent in acting as she did.

Section 85 bars recovery on a negligence claim when the plaintiff is more than 50% negligent, and apportionment of negligence is ordinarily for the jury.

CHAPMAN EX REL. EST. OF CHAPMAN v. Bernard's Inc. · filed 2001-09-20

Under the Massachusetts comparative negligence statute, M.G.L. c. 231, § 85, Chapman would recover nothing on her negligence claim if she were found to be more than 50% negligent. Because apportionment of negligence under that statute is traditionally for the jury, the motion for summary judgment with respect to Count I will be denied.

Section 85 bars recovery when the plaintiff is more than 50% responsible for the injury; comparative negligence is ordinarily for the factfinder.

Marquez v. Home Depot USA, Inc. · filed 2001-08-10

Finally, it is not clear at this stage that plaintiff is more at fault for his injury than defendant. See Mass.Gen.Laws ch. 231 § 85 (precluding recovery where plaintiff is more the cause of injuries than defendant). The question of comparative negligence, like that of breach of duty, is primarily for the factfinder.

Section 85 applies to public way defect claims, so a plaintiff's partial negligence reduces recovery rather than barring it.

Fleming v. City of Worcester · filed 1982-07-02

For all of the foregoing reasons, we believe that the trial judge was correct in applying principles of comparative negligence here.

Section 85 limits a contributorily negligent plaintiff’s recovery without eliminating a negligent defendant’s tort liability.

United States v. Theriaque · filed 1987-11-17

Language from Massachusetts cases indicates that Mass.Gen. Laws ch. 231 § 85 does not affect the creation of tort liability, even where the plaintiff is more than 50% negligent. Rather, the statute is designed to determine the proportions of plaintiffs recovery for existing tort liability.

Section 85 applies only to negligence actions, so its comparative negligence rule does not reduce recovery in a breach of warranty action.

Correia v. Firestone Tire & Rubber Co. · filed 1983-03-09

Starting with Firestone’s argument that G. L. c. 231, § 85, should be construed to apply to breach of warranty actions, we think that this argument is foreclosed by the language of § 85 itself. Section 85 is applicable only to actions “by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property.”

Section 85 does not apply to breach of warranty actions.

Fahey v. Rockwell Graphic Systems, Inc. · filed 1985-08-27

The comparative negligence statute, G. L. c. 231, § 85, does not apply to breach of warranty actions.

Section 85 does not apply to breach of warranty claims.

Goulet v. Whitin MacHine Works, Inc. · filed 1991-03-25

The comparative negligence statute, G. L. c. 231, § 85, is inapplicable to claims for breach of warranty.

Section 85 applies to a contract claim based on negligence and permits damages to be reduced according to the plaintiff’s share of fault.

O'MALLEY v. Putnam Safe Deposit Vaults, Inc. · filed 1983-12-30

The statute clearly applies to the negligence count and we hold it applies to the contract count, as well.

Section 85 governs whether a plaintiff’s own conduct bars recovery on a negligence claim.

Kotler v. American Tobacco Co. · filed 1990-01-12

Knowing and intentional use of a dangerous product with knowledge of its dangerous proclivities is a complete bar to recovery for breach of warranty, but in a negligence action the conduct of the plaintiff which will serve to bar recovery is governed by the comparative negligence statute, M.G.L. c. 231, § 85.

Section 85’s comparative negligence rule does not apply to breach of warranty claims.

Henrick v. Coats Co. · filed 1984-01-11

The judge also erred in instructing the jury that the doctrine of comparative negligence (G. L. c. 231, § 85) would be applicable to the plaintiff s claims based on breaches of warranties as well as to his claims based on negligence, and in instructing (several times) that the two general verdicts must be in the same amount if the jury should find for the plaintiff on both types of claim.

Section 85 impliedly repeals the requirement that nonpassengers exercise due care to recover from the MBTA.

Mirageas v. Massachusetts Bay Transportation Authority · filed 1984-05-14

Nevertheless, we think that G. L. c. 231, § 85, impliedly repeals that requirement.

Section 85 requires consideration of the plaintiff’s comparative negligence when assessing compensatory damages, even if the defendant was grossly negligent, but does not reduce punitive damages.

Lane v. Meserve · filed 1985-08-29

The comparative negligence statute, G. L. c. 231, § 85, refers only to “damages for negligence,” and we construe the statutory language as meaning compensatory damages only. Lane’s comparative negligence, if any, would not, therefore, reduce an exemplary award. ... Where, as here, the jury were permitted to award compensatory damages based on any degree of negligence, including gross negligence, it was error to instruct that they were not to consider Lane’s comparative negligence in the event they found the defendant grossly negligent.

Section 85 does not displace the sole cause rule for public way defects because that rule rests on causation rather than contributory fault.

Tomasello v. Commonwealth · filed 1986-08-19

The comparative negligence statute does not override legislatively recognized principles of law not founded on contributory fault.

Section 85 permits a plaintiff’s comparative negligence to reduce or defeat a negligence claim involving a product, but does not apply to breach of warranty actions.

Fernandes v. UNION BOOKBINDING CO. IONICS, INC. · filed 1987-05-14

It is clear that the comparative negligence statute, G. L. c. 231, § 85 (1984 ed.), has no application to breach of warranty actions. ... But to the extent that Fernandes’s product liability claim sounds in negligence, his own negligence may serve to reduce or defeat that claim under comparative negligence principles applied through G. L. c. 231, § 85.

Section 85 treats a plaintiff's unreasonable use of a product as comparative negligence in a negligence action, rather than an automatic bar to recovery.

Yates v. Norton Co. · filed 1988-07-20

"Applying the unreasonable use doctrine to actions sounding in negligence is foreclosed by the Commonwealth's comparative negligence statute [G.L.c. 231, § 85 (1986 ed.)]." ... On the negligence count, the deceased's use of the respirator in the tank, at best, raised only the issue of the comparative negligence of the deceased.

Section 85 bars recovery for contributory negligence only when the plaintiff's negligence exceeds the negligence attributable to the defendants from whom recovery is sought; a finding of unreasonable use on a warranty claim does not automatically bar a negligence claim.

Colter v. Barber-Greene Co. · filed 1988-07-20

Applying the unreasonable use doctrine to actions sounding in negligence is foreclosed by the Commonwealth's comparative negligence statute. That statute provides that a plaintiff's recovery shall not be barred by his or her contributory negligence unless the plaintiff's negligence is greater than the amount of negligence attributable to the parties against whom recovery is sought. G.L.c. 231, § 85 (1986 ed.). The statute clearly defines the amount of contributory negligence that will bar the plaintiff's recovery.

Section 85’s comparative negligence defense applies to a child trespasser’s claim based on a landowner’s negligent breach of the duty described in § 85Q.

Mathis v. Massachusetts Electric Co. · filed 1991-01-29

Since the child trespasser statute, G. L. c. 231, § 85Q, imposes on landowners a duty of reasonable care, and creates liability based on negligence principles, the comparative negligence defense is available to defendants.

Section 85 excludes intentional tortious conduct from the comparative negligence assessment.

Flood v. Southland Corp. · filed 1993-08-05

If a defendant's misconduct was intentional, that misconduct is not involved in the application of § 85.

Section 85 bars recovery when the plaintiff’s negligence exceeds the defendant’s; otherwise, damages are reduced in proportion to the plaintiff’s negligence.

Govoni & Sons Construction Co. v. Mechanics Bank · filed 1995-03-03

Under §85, if the plaintiffs’ negligence is greater than the Bank’s negligence, then the statute bars any recovery. However, if the plaintiffs’ negligence “was not greater than the total amount of negligence attributable” to the Bank, any damages allowed should be diminished in proportion to the amount of negligence attributable to the plaintiffs.

Section 85 does not displace the rule that a supermarket need not warn customers about a stock cart left in an aisle for a few minutes.

Demirgian v. Star Market Co. · filed 1995-12-13

We do not agree with the plaintiff that the passage of the comparative negligence statute, G.L.c. 231, §85, and its subsequent amendment by St. 1973, c. 1123, cast doubt on the continued validity of the rule enunciated vaMudge and reaffirmed in Thacker v. Blair’s Foodland, supra.

Section 85 abolishes assumption of risk as a defense but leaves intact a negligence plaintiff’s burden to prove a duty of care, including under the open and obvious danger rule.

O'Sullivan v. Shaw · filed 2000-04-13

Because “[a] statute is not to be interpreted as effecting a material change in or repeal of the common law unless the intent to do so is clearly expressed,” Riley v. Davison Constr. Co., 381 Mass. 432, 438 (1980), quoting Pineo v. White, 320 Mass. 487, 491 (1946), we conclude that the Legislature’s express abolition of “the defense of assumption of risk” in G. L. c. 231, § 85, does not alter the plaintiff’s burden in a negligence action to prove that the defendant owed him a duty of care in the circumstances, and thus leaves intact the open and obvious danger rule, which operates to negate the existence of a duty of care (emphasis added).

Section 85 abolishes assumption of risk as an affirmative defense but leaves the open and obvious danger rule intact for duties to warn.

Costa v. Boston Red Sox Baseball Club · filed 2004-06-09

This principle exists independently of the doctrine of assumption of risk and was unaffected by the enactment of G. L. c. 231, § 85. ... As the Supreme Judicial Court explained, the abolition of assumption of risk as an affirmative defense did “not alter the plaintiffs burden in a negligence action to prove that the defendant owed him a duty of care in the circumstances, and thus [left] intact the open and obvious danger rule, which operates to negate the existence of a duty of care,” at least insofar as a duty to warn is concerned.

Section 85’s comparative negligence rule does not relieve a plaintiff of proving that the defendant’s negligence proximately caused the injury.

Delnegro v. Hampton · filed 2001-03-07

This assertion misconstrues the plaintiffs burden of proof in a negligence action with the allocation of damages pursuant to the comparative negligence statute. In an action for negligence, the plaintiff has the burden of persuading the trier of fact by a fair preponderance of the evidence that (1) the defendant owed him a duty of care, (2) that the defendant breached that duty, (3) that he was injured or his property was damaged, and (4) such injury or damage was the direct and proximate result of the breach.

Section 85 treats an injured visitor’s knowledge of a hazard as a matter of comparative negligence when assessing the visitor’s conduct.

Quinn v. Morganelli · filed 2008-10-28

Furthermore, even though the plaintiff may have had actual knowledge of the step-down from having been inside the defendants’ home previously, that fact bears only on her comparative negligence, see G. L. c. 231, § 85, as appearing in St. 1969, c. 761, § 1, and as appearing in St. 1973, c. 1123, § 1, and should not have played a role in the judge’s analysis of the defendants’ duty, which turns on whether the risk of injury was obvious to a hypothetical person of average intelligence.

Section 85 presumes that a plaintiff exercised due care and places the burden of proving contributory negligence on the defendants.

Douglas v. Boston & Maine Railroad · filed 1923-02-27

The plaintiff is presumed to have been in the exercise of due care, and contributory negligence on his part was a defence to be proved by the defendants. St. 1914, c. 553, now G. L. c. 231, § 85.

Section 85 presumes an injured person exercised due care until evidence shows the facts, while the defendant bears the burden of proving contributory negligence.

Bagnell v. Boston Elevated Railway Co. · filed 1924-01-03

The presumption being in the plaintiff’s favor, the burden of proof was on the defendant; but the presumption did nothing more than establish the inference of her due care in the absence of evidence showing the facts. The issue involved was to be decided on the evidence alone, without reference to the presumption.

Section 85 presumes that a deceased person exercised due care when the evidence does not fully disclose their conduct, leaving that question to the jury.

Conroy v. Maxwell · filed 1924-02-27

The conduct of the deceased is not fully disclosed by the evidence. She is presumed to have been in the exercise of due care. St. 1914, c. 553, now G. L. c. 231, § 85. That question, therefore, was for the jury.

Section 85 does not aid a plaintiff whose own evidence establishes that the decedent failed to exercise due care.

O'Callaghan v. Boston Elevated Railway Co. · filed 1924-05-19

The evidence of the plaintiff’s witness shows that the intestate was not in the exercise of due care. G. L. c. 231, § 85, does not help the plaintiff.

Section 85 does not permit a ruling that an injured plaintiff lacked due care as a matter of law when the testimony conflicts.

Puccia v. Sevigne · filed 1927-01-07

Upon the conflicting testimony it could not have been ruled that the plaintiff was not in the exercise of due care. G. L. c. 231, § 85.

Section 85 presumes that a deceased person exercised due care when the evidence does not show what he did.

Poppel v. Boston Elevated Railway Co. · filed 1927-02-14

The question of the due care of the plaintiff’s intestate was for the jury. What he said or heard after leaving the outbound car does not appear. He is presumed to have been in the exercise of due care. G. L. c. 231, § 85.

Section 85’s presumption of due care disappears when evidence bears on the decedent’s care; the jury then decides the issue, with the burden on the defendant.

Ferris v. Ray Taxi Service Co. · filed 1927-05-18

This instruction was correct. As there was evidence bearing on the question of the intestate’s care, it was for the jury to determine that issue on the evidence, and there was, therefore, no presumption in his favor.

Section 85’s presumption of due care does not require submission to a jury when evidence explains the plaintiff’s conduct and shows how he acted.

Loyle v. Boston Elevated Railway Co. · filed 1927-06-30

The presumption that the plaintiff was in the exercise of due care, G. L. c. 231, § 85, did not require submission to the jury in this case where there is evidence explaining the plaintiff’s conduct and showing in what manner he acted.

Section 85 presumes that an injured person exercised due care, but the presumption does not control when undisputed facts show only a lack of due care.

Murphy v. Boston Elevated Railway Co. · filed 1928-03-01

There is a presumption that the intestate was using such care, G. L. c. 231, § 85; but where all the facts are beyond dispute, and where they are consistent only with lack of due care, that presumption is not controlling.

Section 85’s presumption of due care aids a plaintiff when the defendant has not established the injured person’s contributory negligence as a matter of law.

Hepburn v. Walters · filed 1928-03-15

This is one of the cases where the presumption established by G. L. c. 231, § 85, aids the plaintiff.

Section 85 gives a deceased pedestrian the benefit of a presumption of due care when the facts do not compel a finding of contributory negligence.

Lekarczyk v. Dupre · filed 1928-11-20

The facts are not as matter of law inconsistent with a finding of due care and a reasonable prudence exercised by the intestate for his safety, and the plaintiff is entitled to the benefit of the presumption of such care by G. L. c. 231, § 85.