231 Mass. Gen. Laws § 85

Section 85’s presumption of due care and rule on the burden of proof leave contributory negligence for the jury unless the evidence is conclusive.

Donovan v. Mutrie · filed 1929-01-03

If he so started, although the evidence with its inferences points strongly toward want of care on his part, yet it is not of such a conclusive nature that we can say the instruction was erroneous in view of the statutory presumption and the rule as to burden of proof. G. L. c. 231, § 85.

Section 85 gives a plaintiff a presumption of due care that ends when all the evidence is in, while the defendant bears the burden of proving lack of care.

Pendleton v. Boston Elevated Railway Co. · filed 1929-02-13

The statute gives the plaintiff the benefit of the presumption of care, but this presumption no longer exists when all the evidence is in: to show a lack of care by the plaintiffs, the burden of proof was on the defendant.

Section 85 presumes that a person killed exercised due care and requires the defendant to prove contributory negligence.

King v. Weitzman · filed 1929-05-31

It is provided by G. L. c. 231, § 85, that in actions of this nature "the person . . . killed shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answer and proved by the defendant.” This statute is precisely applicable to the facts here disclosed.

Section 85’s presumption of due care is not weighed with evidence showing the circumstances of the accident.

Wilmur Motors, Inc. v. Eastern Massachusetts Street Railway Co. · filed 1930-03-24

No statutory presumption of due care (G. L. c. 231, § 85) was to be weighed with them.

Section 85’s presumption of due care is not evidence and ceases to apply when evidence of the plaintiff’s actual conduct is introduced.

Mahoney v. Boston Elevated Railway Co. · filed 1930-05-26

It is settled law that this statutory presumption is not evidence; and that it ceases to be of force when ... evidence of the actual conduct of the plaintiff is introduced.

Section 85’s presumption of due care does not aid a plaintiff whose own testimony fully describes his conduct and establishes a lack of due care.

Walsh v. Boston Elevated Railway Co. · filed 1930-05-28

The statutory presumption of due care (G. L. c. 231, § 85) ...does not help him. His own testimony supplies the full details of the action which he claims to have taken'in the circumstances. There is no place for presumption.

Section 85 presumes that a decedent exercised due care and requires the defendant to plead and prove contributory negligence.

Davis v. New York, New Haven & Hartford Railroad · filed 1930-07-02

Under G. L. c. 231, § 85, the decedent was presumed to have been in the exercise of due care, and contributory negligence on his part was an affirmative defence to be pleaded and proved by the defendant.

Section 85’s presumption of due care can leave a pedestrian’s due care for the jury without affirmative proof that she was actively looking out for her safety.

Regan v. Rosenmark · filed 1930-07-02

It is the contention of the defendant that to entitle the plaintiff to recover it must appear affirmatively that his intestate “was actively looking out for her personal safety.” That contention cannot be sustained. In O’Connor v. Hickey, 268 Mass. 454, recently decided by this court, the same contention was made. It was there held that “The presumption of due care created by G. L. c. 231, § 85, in any event is coextensive with the requirement as to due care expounded in the Hudson case. . . . [Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 521.] That presumption was not inapplicable as matter of law to the case at bar. Mercier v. Union Street Railway, 230 Mass. 397, 403, 404. The case on this point is covered by the authority of King v. Weitzman, 267 Mass. 447, 450.” It could not have been ruled that the decedent was not in the exercise of due care.

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

Martin v. Florin · filed 1930-10-02

The burden of proof was upon the defendant to establish the plaintiff’s lack of due care. G. L. c. 231, § 85. This question was properly left to the decision of the jury.

Section 85 does not apply when the evidence requires a finding that the injured persons failed to use reasonable care.

Renwick v. Eastern Massachusetts Street Railway Co. · filed 1931-03-31

The evidence required findings that Gilchrist, Rocco and Renwick failed to use the care of reasonable men to guard themselves from injury. ... All the circumstances appeared in evidence. There was no occasion for the operation of G. L. c. 231, § 85.

Section 85 applies to an accident outside Massachusetts as a procedural rule, presuming the deceased exercised due care and placing the burden of proving contributory negligence on the defendant.

Gould v. Boston & Maine Railroad · filed 1931-06-23

Although the accident occurred in New Hampshire, G. L. c. 231, § 85, which affects procedure, applies. ... The intestate therefore was presumed to be in the exercise of due care, and the burden was on the defendant to show his contributory negligence.

Section 85 presumes that a decedent exercised due care when the case is tried in Massachusetts.

Holland v. Boston & Maine Railroad · filed 1932-05-20

Since the case was tried in this Commonwealth our laws of practice and procedure govern, and under G. L. c. 231, § 85, it is to be presumed that the plaintiff’s intestate was in the exercise of due care.

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

Joughin v. Federal Motor Transportation Co. · filed 1932-06-27

By force of the statute the plaintiff is presumed to have been in the exercise of due care and the burden of proving contributory negligence on her part was upon the defendant.

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

Roselli v. Riseman · filed 1932-10-05

The only specific exception to the charge was to the instruction to the effect that the burden of proof was on the defendant to show that the plaintiff was guilty of contributory negligence. That instruction was correct. O’Connor v. Hickey, 268 Mass. 454, 458. G. L. (Ter. Ed.) c. 231, §85.

Section 85 gives a child plaintiff the benefit of a presumption that the child exercised the care expected of someone that age under similar conditions.

DeFuria v. Mooney · filed 1932-10-26

Whatever his capacity of exercising care for his safety ... he was entitled, under G. L. (Ter. Ed.) c. 231, § 85 ... to the benefit of the presumption that he exercised the care to be expected of a child of his age under like conditions.

Section 85 presumes that a person killed was exercising due care unless evidence shows the facts.

Ahmedjian v. Erickson · filed 1932-11-01

The presumption referred to in the statute establishes the due care of the plaintiff’s intestate in the absence of evidence showing the facts.

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

DeLuca v. Boston, Revere Beach & Lynn Railroad · filed 1933-03-29

On the foregoing facts the burden of proof was upon the defendant to establish that the plaintiff was guilty of contributory negligence. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden on the defendant to prove that the deceased was not exercising due care.

Kenney v. Boston Elevated Railway Co. · filed 1933-04-27

But the burden of proof was on the defendant to show that the deceased was not in the exercise of due care, and that issue, as well as the issue of the defendant’s negligence, was for the jury.

Section 85 presumes that a person suing for injury to their person or property exercised due care, but that presumption does not apply to a husband suing for expenses caused by his wife's injury.

Thibeault v. Poole · filed 1933-06-29

The provisions of said § 85 as to burden of proof do not extend to the husband in the action in his own right. The presumption created by that section relates only to actions “to recover damages for injuries to the person or property.”

Section 85’s presumption of due care operates only while credible evidence of the facts is lacking; it cannot be combined with evidence to send a claim to the jury.

Brown v. Henderson · filed 1934-02-12

Since, however, the statute creates merely a presumption and not evidence, such presumption can in the nature of things continue only while credible evidence of the facts is lacking. The presumption cannot be combined with the evidence to carry a plaintiff to the jury.

Section 85 presumes that a deceased person exercised due care and requires the defendant to prove contributory negligence.

Hoxie v. Bardwell · filed 1934-06-25

On the facts disclosed in the bill of exceptions it is plain that the defendants as matter of law did not overcome the presumption that the intestate when killed, by the negligence of the defendant Bardwell, was in fact in the exercise of due care.

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

Conrad v. Mazman · filed 1934-06-28

It could not have been ruled as matter of law that the negligence of the plaintiff’s intestate contributed to the accident. The burden of proof was on the defendant. G. L. (Ter. Ed.) c. 231, § 85.

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

Woodman v. Haynes · filed 1935-01-05

The burden of proving the plaintiff’s want of due care was on the defendant. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 does not relieve an injured child of the burden of proving that his custodian exercised due care.

McKenna v. Andreassi · filed 1935-10-05

The burden of establishing that the plaintiff's custodian was in the exercise of due care was on the plaintiff since, on this phase of the case, he is not aided by G. L. (Ter. Ed.) c. 231, § 85.

Section 85 places the burden on the defendant to prove the plaintiff’s contributory negligence.

McCarthy v. Great Atlantic & Pacific Tea Co. · filed 1935-11-26

But the burden was upon the defendant to prove that the plaintiff was contributorily negligent. G. L. (Ter. Ed.) c. 231, § 85. The question therefore is whether the plaintiff’s testimony is necessarily inconsistent with due care on his part. We cannot say that it is.

Section 85 gives a child the presumption that he exercised the care expected of a child of his age under like conditions.

Capano v. Melchionno · filed 1937-03-29

It, could not have been ruled as matter of law that the deceased was negligent. “Whatever his capacity of exercising care for his safety ... he was entitled, under G. L. (Ter. Ed.) c. 231, § 85 ... to the benefit of the presumption that he exercised the care to be expected of a child of his age under like conditions.”

Section 85’s presumption that an injured person exercised due care does not by itself rebut an auditor’s finding of contributory negligence.

Kneizys v. Stone · filed 1937-03-29

An auditor’s finding that a plaintiff was guilty of contributory negligence is not rebutted merely by the statutory presumption that the person injured was in the exercise of due care. G. L. (Ter. Ed.) c. 231, § 85; c. 221, § 56.

Section 85 presumes a plaintiff acted with due care and places the burden of proving the plaintiff’s negligence on the defendant.

Gibbons v. Denoncourt · filed 1937-06-28

The first three requests of the plaintiffs in these three cases were: “1. The due care of the plaintiff is presumed. 2. The presumption of due care is not overcome by the evidence offered by the defendant. 3. It is incumbent upon the defendant to prove lack of due care or negligence on the part of the plaintiff.” The defendant contends that these requests “particularly the plaintiffs’ second request” should not have been given. The language of the first and third requests is substantially the language of the due care statute. G. L. (Ter. Ed.) c. 231, § 85. The defendant asked for no construction or amplification of that language. He now suggests no reason why those two requests were not properly granted. There was no error in granting them.

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

Elfman v. Kronenberg · filed 1938-02-28

The burden of proof was on. the defendant to establish contributory negligence on the part of the plaintiff. G. L. (Ter. Ed.) c. 231, § 85. Under that statute the plaintiff is ... presumed to have been in the exercise of due care.

Section 85 presumes the plaintiff exercised due care and places the burden on the defendant to prove the plaintiff was negligent or assumed the risk of injury.

Holland v. Pitocchelli · filed 1938-03-01

The plaintiff was presumed to be in the exercise of due care at the time of the accident. The burden of proof rested upon the defendant to prove that she was negligent or assumed the risk of injury. G. L. (Ter. Ed.) c. 231, § 85. That was to be decided as a question of fact. It could not rightly have been ruled as matter of law.

Section 85’s presumption that a deceased person exercised due care does not apply when the evidence discloses the person’s conduct.

Brown v. Boston & Maine Railroad · filed 1939-01-03

This is not a case where the evidence fails to disclose the conduct of the deceased, so that he must be presumed to have been in the exercise of due care.

Section 85 presumes a deceased person exercised due care when the evidence does not disclose that person's conduct, but the presumption does not apply when the conduct is sufficiently established.

Emery v. New York, New Haven & Hartford Railroad · filed 1939-04-11

But before this rule can be applied the court must be satisfied that the case is not one where the evidence fails to disclose the conduct of the deceased, for, if that is the situation, he must be presumed to have been in the exercise of due care. ... G. L. (Ter. Ed.) c. 231, § 85. We are of the opinion that this is not such a case.

Section 85 gave a child plaintiff a presumption of due care and placed on the defendant the burden of proving she failed to exercise the care reasonably expected of a child her age.

Birch v. Strout · filed 1939-04-12

Indeed, the lack of such evidence brings the case within the scope of G. L. (Ter. Ed.) c. 231, § 85, which gives the plaintiff the benefit of the presumption that she was careful, ... and imposes upon the defendant the burden of proving that she did not exercise the care to be reasonably expected of a child of her age in like circumstances.

Section 85’s due-care presumption and contributory-negligence defense do not govern the burden of proving conduct that bars recovery under the dog-injury statute.

Sullivan v. Ward · filed 1939-12-29

G. L. (Ter. Ed.) c. 231, § 85, providing that in “all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answer and proved by the defendant,” does not show such a contrary intention nor control the burden of proof under the statute now in question. G. L. (Ter. Ed.) c. 231, § 85, relates to the general concepts of “due care” and “contributory negligence,” not to specific conduct which, by an express provision of G. L. (Ter. Ed.) c. 140, § 155, in its amended form, prevents recovery, regardless of whether in the circumstances of a particular case such conduct constitutes contributory negligence or its absence constitutes due care.

Section 85 places the burden of proving lack of due care on the defendant, and its presumption of due care alone does not rebut an auditor’s finding of contributory negligence.

Wade v. Buchanan · filed 1940-06-25

The binding force and effect of an auditor’s findings of fact, unshaken by other evidence, are settled, Cook v. Farm Service Stores, Inc. 301 Mass. 564, 566, and cases cited; Herbert v. Anbinder, 302 Mass. 396, 397, and an auditor’s finding that the plaintiff was contributorily negligent is not rebutted merely by the statutory presumption that the person injured was in the exercise of due care. G. L. (Ter. Ed.) c. 231, § 85; c. 221, § 56.

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

Vowles v. Smith · filed 1941-11-06

The burden of proof on this issue was on the defendant — that is, the burden of establishing the contributory negligence want of due care — of the plaintiff. G. L. (Ter. Ed.) c. 231, § 85.

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

Shoobridge v. Callahan · filed 1942-01-27

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

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

Brown v. Hathaway Bakeries, Inc. · filed 1942-08-06

The defendant had the burden of proving that the plaintiff had been guilty of contributory negligence. G. L. (Ter. Ed.) c. 231, § 85.

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

Matthews v. L & L Enterprises, Inc. · filed 1943-09-14

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

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

Norton v. Boston Elevated Railway Co. · filed 1944-10-24

But the burden of proof of his contributory negligence is on the defendant. G. L. (Ter. Ed.) c. 231, § 85.

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

Campbell v. Ashler · filed 1946-12-02

In such cases, therefore, the effect of the statute is usually to prevent the direction of a verdict for the defendant on the ground of contributory negligence of the deceased, if it is reasonably possible that the death could have been caused by negligence of the defendant, as alleged, without contributory negligence of the deceased.

Section 85 gives the plaintiff the benefit of a presumption that the deceased exercised due care.

Woods v. DeMont · filed 1948-01-05

It is plain that it could not be ruled, as a matter of law, that the deceased was lacking in due care. The plaintiff has the benefit of the presumption of due care on the part of his intestate afforded him by G. L. (Ter. Ed.) c. 231, § 85.

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

Arrigo v. Lindquist · filed 1949-04-28

We think that the due care of the plaintiff was a question for the jury, especially in view of the statutory burden of proof upon the defendant. G. L. (Ter. Ed.) c. 231, § 85.

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

Dinardi v. Herook · filed 1952-04-03

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

Section 85 presumes that a plaintiff exercised due care unless the evidence overcomes that presumption.

DeAguiar v. Thomas · filed 1956-07-01

In accordance with G. L. c. 231, §85 the plaintiff is presumed to have been in the exercise of due care and on the evidence the court was warranted in finding that the presumption in his favor had not been overcome.

Section 85 creates a rebuttable presumption that a plaintiff exercised due care, which the defendant must overcome when raising contributory negligence.

Poirier v. Rogers · filed 1957-08-16

Normally in a court action, if defendant sets up contributory negligence of plaintiff, he has to overcome the presumption under G. L. c. 231, §85, that plaintiff is in the exercise of due care. That presumption is rebuttable.

Section 85 presumes a plaintiff exercised due care, and that presumption can support a finding of due care unless undisputed facts or binding evidence defeat it.

Collier v. Cahill Motor Co. · filed 1958-07-01

With regard to the question of contributory negligence the plaintiff had the benefit of the statute which clothed him with the presumption of due care. ... While this presumption is not evidence, it is enough to support a finding of due care in the absence of facts which are undisputed or indisputable or evidence by which the plaintiff is bound.

Section 85 presumes that a plaintiff exercised due care, but the presumption disappears when evidence of the plaintiff’s conduct is introduced.

Golden v. Tarbox · filed 1959-07-01

Thus the presumption of due care on the part of the plaintiff disappears when evidence is introduced as to his conduct.

Section 85 requires no further instruction on the presumption of due care when the jury has been adequately charged on that presumption and the standard of care for a child.

Duarte v. Kavanagh · filed 1960-04-04

The judge adequately charged the jury on the presumption of due care and the standard by which the care of a child of the plaintiff’s age should be judged. He was not required to discuss further the statutory presumption. G. L. c. 231, § 85.

Section 85’s presumption that an injured person exercised due care does not rebut an auditor’s finding that the person lacked due care.

Proulx v. St. Johnsbury Trucking Co. · filed 1962-01-12

Nor is the auditor’s finding rebutted by the statutory presumption that the person injured was in the exercise of due care. G. L. c. 231, § 85 (as amended through St. 1952, c. 533, § 1).

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

Potter v. JOHN BEAN DIVISION OF FOOD MACHINERY & CHEM. · filed 1962-05-24

Thus, when the judge told the jury that the burden of proving contributory negligence was on the defendant, he correctly stated the whole practical effect of G.L.c. 231, § 85.

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

Colbeth v. Rachlin · filed 1962-07-01

This right of recovery also depended on whether the plaintiff was free from contributory negligence, the burden being on the defendant to establish the same. G. L. c. 231, §85; Duggan v. Bay State St. Ry., 230 Mass. 370.

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

Mahoney v. Massachusetts Bay Transportation Authority · filed 1968-03-22

There was no evidence which required a finding of contributory negligence on the plaintiff’s part. The burden of proof on this issue was on the defendant (G.L. c. 231, § 85), and the trial justice could well have found, as he impliedly did, that the burden was not sustained. The defendant therefore was not entitled to a ruling that there must be a finding in its favor.

Section 85 does not require a separate instruction on its presumption of due care when the jury has been adequately instructed on the burden of proving contributory negligence.

Flaherty v. Massachusetts Bay Transportation Authority · filed 1972-02-07

The defendant excepted to the judge’s refusal to give two instructions concerning the presumption of due care created by G. L. c. 231, § 85. Having adequately instructed the jury on the burden of proof of contributory negligence, the judge was not required to instruct them further on “what must needs be an academic discussion of . . . [the] theoretical operation” of the statutory presumption.

Section 85 presumes that a plaintiff exercised due care and places the burden of proving contributory negligence on the defendant, but does not relieve the plaintiff of showing that his own handling did not cause a product’s failure when that showing is needed to infer the defendant’s negligence.

Coyne v. John S. Tilley Co. Inc. · filed 1975-06-25

There is no merit to the plaintiff’s contention that the requirement that he exclude his own actions as a cause of the ladder’s collapse contravenes G. L. c. 231, § 85 (as appearing in St. 1973, c. 1123, § 1). The statute provides that “the plaintiff shall be presumed to have been in the exercise of due care” and places the burden of proving contributory negligence by the plaintiff on the defendant. ... Yet, the requirement that the plaintiff eliminate his own handling of the product as a cause of his injuries is analytically distinct from a requirement, in violation of the statute, that he prove the absence of contributory negligence.

Section 85 presumes the plaintiff exercised due care when the defendant raises comparative negligence, but the plaintiff must still prove the defendant’s negligence.

Gynan v. Hayes · filed 1980-05-14

It should be noted that c. 231, § 85, as appearing in St. 1973, c. 1123, § 1, gives the plaintiff a presumption of due care with respect to an affirmative defense of comparative negligence set up by the defendant so as to relieve the plaintiff from having to prove as part of his prima facie case that he was in the exercise of due care. The statute does not, however, relieve the plaintiff from proving the defendant’s negligence.

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

Ramos v. Storlazzi · filed 1980-08-29

Here, the judge gave proper and quite thorough instructions to the jury on each element of the plaintiff’s negligence complaint, and the jury were properly instructed that the defendant had the burden of proving contributory negligence on the part of the plaintiff. See G. L. c. 231, § 85, as appearing in St. 1973, c. 1123, § 1.

Section 85’s presumption that a plaintiff exercised due care need not be included in jury instructions and has no effect once evidence of the plaintiff’s negligence is presented.

Morgan v. Lalumiere · filed 1986-05-28

Nothing in the statute requires, however, that the jury be told about the presumption, and the use of such language in an instruction has been commented upon with disapproval. ... Once some evidence of Morgan’s negligence was presented, the presumption of the plaintiff’s due care no longer had any effect.

Section 85 does not require an express jury instruction on the presumption of due care when the judge has explained each party’s burden of proof in discussing comparative negligence.

McCrevan v. Miller · filed 2002-04-08

Finally, since the jury determined that the defendant was not negligent, there is no reason to discuss at length the plaintiffs claim that the judge failed expressly to charge that the plaintiff was presumed in the exercise of due care. G.L.c. 231, §85. In discussing comparative negligence, the judge gave a lucid explanation of each party’s burden of proof. We determine that failure to instruct as to the presumption of due care was not error.

A court need not apply Section 85’s presumption of due care at summary judgment when there is no evidence that the plaintiff lacked due care.

Ricker v. Sprague Energy Corp. · filed 2003-01-16

The court will not accept the plaintiffs invitation to apply a presumption that the plaintiff was exercising due care. At the present summary judgment stage, there is no evidence of a lack of due care by the plaintiff.

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

Proctor v. North Shore Community Arts Foundation · filed 1999-07-22

In the instant case, viewing the evidence in the light most favorable to the defendant, who had the burden of proving the plaintiff’s comparative negligence at trial, G. L. c. 231, § 85, the jury properly could have found that Proctor was fifty percent responsible.

Section 85 compares the plaintiff’s negligence with that of defendants from whom recovery is sought and bars recovery when the plaintiff’s negligence is greater.

Boucher v. Lowell Automatic Transmission · filed 2001-08-08

The comparative negligence statute provides for the comparison of plaintiff’s negligence to that of anyone else against whom recovery is sought See G.L.c. 231, §85. When comparative negligence is applied, the plaintiff is precluded from recovering any damages when his/her negligence is greater than the defendants negligence.

Section 85 presumes that a plaintiff exercised due care and places the burden of proving comparative negligence on the party asserting it.

White v. Maldonado · filed 2020-01-07

Defendants therefore bear the burden of proving that Ms. Sarno did not exercise reasonable care and that this alleged lapse resulted, at least in part, in her injuries.

Section 85 benefits an injured plaintiff on the issue of his own due care when assessing whether his personal injury claim merits a trial.

Herlihy v. Kane · filed 1941-12-30

The petitioner would have the benefit of G. L. (Ter. Ed.) c. 231, § 85, in its bearing upon his own due care.

Section 85 makes a pedestrian plaintiff’s due care a question for the jury.

Fraser v. Flanders · filed 1924-02-27

The plaintiff, a pedestrian, whose due care was for the jury under G. L. c. 231, § 85, was crossing Newbury Street along the easterly side of Exeter Street going in a southerly direction, which were intersecting highways in the city of Boston, when, as the jury could find, he was struck by an automobile and severely injured.

Section 85 applies to death actions under chapter 229, sections 5 and 6, and permits a jury to decide contributory negligence when credible evidence could show that the decedent’s lack of care contributed to the death.

Wanamaker v. Shaw · filed 1936-05-26

It follows that in an action, “civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person” the plaintiff was not entitled to a ruling that upon all the evidence as matter of law the defendant had not proved that the plaintiff’s testate was guilty of contributory negligence, if there was any credible evidence which would warrant the jury in finding as facts that the testate was not actively and actually in the exercise of due care at the time of the accident and that such lack of care was a contributing cause of her death.

Section 85 leaves contributory negligence to the jury when the evidence does not establish the plaintiff's lack of due care as a matter of law.

McGillivray v. Eramian · filed 1941-06-26

In these circumstances we. think that it could not have been ruled properly that the plaintiff was guilty of contributory negligence. G. L. (Ter. Ed.) c. 231, § 85.

Section 85 leaves contributory negligence for the jury when the plaintiff’s negligence has not been established as a matter of law.

Fitzgerald v. Packard · filed 1944-12-28

And Mary W. Fitzgerald was not shown to have been guilty of contributory negligence as matter of law. G. L. (Ter. Ed.) c. 231, § 85. The negligence or due care of the operators of the colliding vehicles was for the jury.

Section 85 leaves to the jury the factual question whether a plaintiff acted to place himself in a zone of danger.

Carr v. Howard · filed 1996-02-15

Whether Carr acted to place himself in the zone of danger, see G.L.c. 231, §85, is a fact question for the jury.

A plaintiff’s decision to encounter an obvious ice hazard may be considered in assessing comparative negligence.

Soederberg v. Concord Greene Condominium Association · filed 2010-02-25

Of course, the reasonableness of the plaintiff encountering the hazard, despite its obviousness, may be considered by the jury insofar as it relates to the issue of comparative negligence.

A dispute about facts bearing on comparative negligence can preclude summary judgment under § 85.

Romecevich v. Armbruster · filed 2023-08-04

While Armbruster correctly describes the effect of Massachusetts’s comparative negligence statute, M.G.L. c. 231 § 85, genuine disputes of material fact preclude a determination of Romecevich’s comparative negligence on summary judgment where Armbruster’s comparative negligence assertion is premised on the disputed claim that the couch, pillows, and tape effectively blocked the space between the hallway and family room.

Section 85 makes an injured person's contributory negligence an affirmative defense, but it does not relieve the plaintiff of proving that the child's mother exercised proper care.

Stachowicz v. Matera · filed 1926-10-19

G. L. c. 231, § 85, enacting that contributory negligence on the part of the injured person shall be an affirmative defence, does not help the plaintiff with respect to the care exercised ... by the mother.

Section 85 makes contributory negligence an affirmative defense but does not aid a plaintiff incapable of exercising care for his own safety.

Minsk v. Pitaro · filed 1933-09-15

Since the plaintiff is to be taken to have been incapable of exercising care for his own safety in the situation where he was, he is not aided in the establishment of a case against the defendant by G. L. (Ter. Ed.) c. 231, § 85, which makes contributory negligence on the part of the person injured an-affirmative defence.

Section 85 does not aid a child plaintiff who cannot exercise care for herself in proving that her custodian exercised due care.

Shear v. Rogoff · filed 1934-11-26

A verdict for the defendant could not rightly have been directed since, though on this branch of the case the plaintiff is not aided by G. L. (Ter. Ed.) c. 231, § 85, the evidence warranted a finding that the plaintiff at the time of the accident was in the custody of her seventeen year old sister who exercised due care for her protection, that is, that the plaintiff was in the street without fault on the part of her custodian.

Section 85 places the burden of proving that a plaintiff assumed the risk of injury on the defendant.

Cushing v. Jolles · filed 1935-09-12

The burden of proof in this particular was on the defendant. ... G. L. (Ter. Ed.) c. 231, § 85. It could not rightly have been ruled that that burden had been sustained.

Section 85, as amended in 1973, abolishes assumption of the risk as a defense for accidents occurring after January 1, 1974.

Uloth v. City Tank Corp. · filed 1978-12-21

Uloth’s accident occurred on October 14,1970, so it is not affected by G. L. c. 231, § 85, as amended by St. 1973, c. 1123, which abolished assumption of the risk as a defense in cases arising out of accidents occurring after January 1, 1974.

Section 85’s 1969 amendment left assumption of risk available as a defense; a later amendment abolished it effective January 1, 1974.

Riley v. DAVISON CONSTRUCTION CO., INC. · filed 1980-09-02

Therefore, for all of the above reasons we conclude that St. 1969, c. 761, did not abolish assumption of the risk and the trial judge was correct in ruling that the defense was applicable in the instant case.

Section 85 abolishes assumption of risk as a defense, so the standard of care in athletic injury cases is framed in terms of the defendant’s duty.

Gauvin v. Clark · filed 1989-04-03

The Legislature has abolished the defense of assumption of the risk in Massachusetts, however. G. L. c. 231, § 85 (1986 ed.).

Section 85 abolishes assumption of risk as a defense to negligence.

Hill v. Bosma · filed 1993-06-16

The court correctly denied the motion for summaiy judgment. Assumption of the risk has been abolished as a defense to negligence in Massachusetts.

Section 85 abolishes secondary assumption of the risk as an affirmative defense in Massachusetts.

Hopkins v. Medeiros · filed 2000-02-24

The affirmative defense of secondary assumption of the risk has been abolished by statute in Massachusetts. See G. L. c. 231, § 85.

The 1969 amendment to § 85 does not affect a case that arose before the amendment.

Dane v. Cormier · filed 1972-06-02

This case arose prior to the amendment of G. L. c. 231, § 85, by St. 1969, c. 761, § 1 (see also § 2), and is not thereby affected.

Section 85’s comparative negligence rule does not apply to a death that occurred before the rule was adopted in 1969.

Campbell v. Thornton · filed 1975-08-26

The death in the present case occurred in 1966 and therefore the doctrine of comparative negligence first incorporated into our law by statute in 1969 does not apply.

Section 85’s 1969 amendment does not apply to an action arising from a 1967 accident.

Hebert v. Massachusetts Bay Transportation Authority · filed 1974-01-17

The amendment of § 85 which was effected by St. 1969, c. 761, does not apply to this action.

Section 85 does not apply to causes of action arising before January 1, 1971.

Schaeffer v. General Motors Corp. · filed 1977-03-16

The “cause of action” in this case arose before January 1, 1971; hence G. L. c. 231, § 85, as appearing in St. 1969, c. 761, ... is not applicable.

Section 85's comparative negligence rule does not apply to accidents that occurred before it took effect; under the earlier rule, contributory negligence bars recovery.

Power Service Supply, Inc. v. E. W. Wiggins Airways, Inc. · filed 1980-02-05

Because the comparative negligence statute was not in effect atfhe time of this accident, any recovery by Power would be barred if Keddy were contributorily negligent.

Section 85’s comparative negligence rule does not apply to injuries sustained before January 1, 1971; contributory negligence remains a complete bar to recovery for those injuries.

Lockwood v. Setounis · filed 1980-08-29

We conclude that the plaintiff was contributorily negligent as a matter of law. The accident occurred before January 1,1971 (the effective date of our comparative negligence statute), and hence the plaintiff’s contributory fault would be an absolute bar to recovery. See G. L. c. 231, § 85, as appearing in St. 1973, c. 1123, § 1.

Section 85’s comparative negligence amendments leave the former contributory negligence bar applicable to causes of action arising before January 1, 1971.

E. H. Hall Co. v. U. S. Plastics Corp. · filed 1974-04-17

Part (b) of this statement is applicable only to causes of action arising before January 1, 1971, such as the one in the instant case. See G. L. c. 231, § 85, as amended by St. 1969, c. 761, § 1, and as further amended by St. 1973, c. 1123, § 1.

Section 85’s comparative negligence doctrine applies only to causes of action arising on or after January 1, 1971.

DiGesse v. Columbia Pontiac Co. Inc. · filed 1975-11-12

The accident in this case occurred on November 26, 1969, and it is therefore not governed by the comparative negligence doctrine now found in G. L. c. 231, § 85, as amended.

Section 85’s comparative negligence standard applies to causes of action arising on or after January 1, 1971.

Poirier v. Town of Plymouth · filed 1978-01-10

The statute providing for the use of the comparative negligence standard was not applicable to this case as the cause of action arose prior to its effective date. See G.L.c. 231, § 85, as amended by St. 1969, c. 761, §§ 1, 2 (effective January 1, 1971, and applicable to causes of action arising on or after that date), and as further amended by St. 1973, c. 1123, § 1.

Section 85 replaced contributory negligence as a complete defense with comparative negligence, and its 1973 amendment applied to this claim.

Upham v. Chateau De Ville Dinner Theatre, Inc. · filed 1980-04-09

Contributory negligence as a defense was abolished by St. 1969, c. 761, § 1, which amended G. L. c. 231, § 85, and was effective as to causes of action arising on and after January 1, 1971. Statute 1973, c. 1123, effective January 1, 1974, further amended the comparative negligence statute. There is no dispute about the fact that the plaintiff’s case is within St. 1973, c. 1123. Therefore, the defendant’s reliance on the Roy and Perry cases is misplaced.

The 1973 amendment to § 85 abolishes assumption of risk as a defense for accidents occurring after January 1, 1974.

Torre v. Harris-Seybold Co. · filed 1980-05-06

Because Torre’s accident occurred on April 27, 1970, it is not affected by G. L. c. 231, § 85, as amended by St. 1973, c. 1123, which abolished assumption of the risk as a defense in cases arising out of accidents occurring after January 1, 1974.

Section 85 abolishes assumption of the risk as a defense to causes of action arising on or after January 1, 1974.

Cassamasse v. J.G. Lamotte & Son, Inc. · filed 1984-03-01

Cassamasse’s injury and death occurred before the effective date of St. 1973, c. 1123, which amended G. L. c. 231, § 85, and abolished assumption of the risk as a defense to causes of action arising on and after January 1, 1974.

Under the 1969 version of § 85, a plaintiff’s negligence is compared with the combined negligence of all defendants.

Graci v. Damon · filed 1978-03-27

The 1973 statute changes the phrase "negligence of the person against whom recovery is sought” to read "the total amount of negligence attributable to the person or persons against whom recovery is sought.” It thus makes clear that the negligence of a plaintiff is to be compared with the total negligence of all the defendants, all of whom are liable to the plaintiff, with contribution among the joint tortfeasors on a pro rata basis in accordance with G. L. c. 231B, which remains unchanged.

Under the 1969 version of § 85, a plaintiff’s negligence is compared with the combined negligence of all defendants.

Graci v. Damon · filed 1978-12-15

The Appeals Court concluded that the negligence of a plaintiff is to be compared with the total negligence of all the defendants. We agree with the reasoning and the result reached by the Appeals Court.

Under the 1969 version of § 85, a plaintiff’s negligence is compared with the combined negligence of multiple defendants, and damages are reduced in proportion to the plaintiff’s negligence.

Garbincius v. Boston Edison Company · filed 1980-05-28

Defendants claim that it was error to have the jury compare the negligence of the decedent with the combined negligence of the two defendants. They assert that decedent's negligence should have been computed against each defendant separately and, since this was not done, the reduction in damages as to each was erroneous. This argument simply does not make sense. ... There was no way that it could have been measured against each defendant. ... We find this reasoning persuasive and conclusive.

Section 85 compares a plaintiff's negligence with the defendants' total negligence but does not change how contribution is apportioned among codefendants.

Zeller v. Cantu · filed 1985-06-05

Nothing in G.L.c. 231, § 85, undermines the system of pro rata contribution mandated by G.L.c. 231B.

Section 85 requires the jury to apportion negligence between the plaintiff and defendant without allocating fault to nonparties such as the plaintiff’s employer.

Allen v. Chance Manufacturing Co., Inc. · filed 1989-04-28

Under the Massachusetts comparative negligence law, Mass.Gen.Laws ch. 231, § 85 (1986), a jury must apportion negligence between only the plaintiff and the defendant; the fault of non-parties like the employer is not to be taken into account.

Section 85 does not allow a jury to compare negligent conduct with intentional conduct when apportioning fault.

Flood v. Southland Corp. · filed 1992-09-15

Intentional conduct cannot be negligent conduct, see Waters v. Blackshear, 412 Mass. 589, 590 (1992), and the comparative negligence statute, G. L. c. 231, § 85, does not allow for the comparison of negligent and intentional conduct.

Section 85 requires negligence percentages to total 100%; when a defendant’s liability is reversed on appeal, the remaining parties’ shares must be redetermined at a new trial.

Rolanti v. Boston Edison Corp. · filed 1992-11-10

Because we reverse the judgment against N.E.T., the percentages of negligence do not, as required by G. L. c. 231, § 85, total 100%. ... We are constrained to remand the case for a new trial to resolve the issue of apportionment of liability.

Section 85 determines whether a plaintiff may recover despite her own negligence and how much she may recover; it does not apportion liability among joint tortfeasors.

Mitchell v. Hastings & Koch Enterprises, Inc. · filed 1995-03-22

The only significance of assigning percentages of fault was to determine whether the plaintiff could recover at all from the defendants collectively, and, if so, what percentage of her damages she could collect. ... The comparative negligence law, G. L. c. 231, § 85, is irrelevant to the apportionment of liability among joint tortfeasors.

Section 85 requires the jury to apportion negligence among the named parties participating in the trial, excluding a tortfeasor who settled before trial.

Shantigar Foundation v. Bear Mountain Builders · filed 2004-03-05

Our reading of the language in G. L. c. 231, § 85, in light of our previous interpretations of the Massachusetts statutory schemes governing liability of multiple tortfeasors, persuades us that the statute applies only to named parties who participate in the trial.

Section 85 confines fault apportionment to the plaintiff and parties against whom recovery is sought, excluding settled or other absent tortfeasors.

Herman v. Horne Realty, Inc. · filed 2009-06-24

Thus, it was error for the trial judge to instruct the jury to apportion damages among all alleged tortfeasors who were not defendants at trial. The apportionment of fault should have been confined to those parties participating in the trial.

Section 85 permits a reduction in damages based on the comparative negligence of the person whose injury or death is at issue, but does not permit allocating fault to nonparties.

Hall v. Hartzell Engine Technologies, LLC · filed 2020-06-22

The motion to strike is granted to the extent that is raises the defense of comparative fault of persons or entities not party to this litigation, and denied insofar as it relates to the comparative fault of Joseph Kalister.

Section 85 permits a comparative negligence reduction only when evidence supports a finding that the plaintiff was negligent.

Bonomo v. Kennedy · filed 1979-08-21

The jury returned special verdicts awarding the plaintiff damages of $22,500 against both defendants but also found the plaintiffs degree of negligence to be forty-nine percent, and her award was reduced by that percentage. See G. L. c. 231, § 85, as appearing in St. 1969, c. 761, § 1. ... We conclude that there was no evidence sufficient to support the special verdict that the plaintiff was guilty of contributory negligence. ... The special verdicts finding the plaintiff forty-nine percent negligent are set aside, and a judgment is to be entered for the plaintiff against each defendant, in the amount of $22,500.

Section 85 requires a comparative negligence instruction when the evidence would permit a jury to find that the plaintiff’s negligence contributed to his injuries.

Lakew v. Massachusetts Bay Transportation Authority · filed 2006-03-22

It remains to consider the MBTA’s argument that the jury should have been instructed to assess the plaintiff’s comparative negligence in accordance with G. L. c. 231, § 85. ... The MBTA was entitled to its requested jury instruction, and its omission entitles the MBTA to a new trial on the plaintiffs negligence claim.

Section 85 reduces a plaintiff’s damages in proportion to the plaintiff’s comparative negligence.

Fisher v. United States · filed 2010-03-30

I find that Fisher is 50% negligent and his damages will be reduced accordingly. Mass. Gen. Law ch. 231, § 85.

Section 85 permits recovery when the plaintiff’s negligence is no greater than the defendants’ total negligence, but reduces damages in proportion to the plaintiff’s fault.

Smith v. Chase Enterprises Corporation · filed 2024-09-23

As Jeffrey is not more than 50% responsible for the accident, his recovery is not barred but, instead, will be reduced in proportion to his percentage of fault, or 40%.

Section 85 does not permit reducing a spouse’s loss of consortium award by the injured spouse’s negligence when the spouse claiming consortium was not negligent.

Feltch v. General Rental Co. · filed 1981-05-08

Anne Feltch was not found to be negligent, and the statute does not indicate that her recovery may be reduced by the degree of her husband’s negligence.

Section 85 did not bar a minor’s claim on public policy grounds for his illegal fireworks activity, even assuming some criminal conduct might warrant an exception.

Flanagan v. Baker · filed 1993-10-28

Even were we to conclude that § 85 allows actions by certain lawbreakers to be defeated for public policy reasons, we would not preclude Steven from recovery for his injuries on that basis.

Section 85 did not warrant barring recovery at the pleading stage for the plaintiff’s alleged criminal violation, although some criminal conduct might justify a bar.

O'HANLEY v. Ninety-Nine, Inc. · filed 1981-06-12

The short answer to any such contention would appear to be that the second paragraph of G. L. c. 231, § 85, is explicit that “[t]he violation of a criminal statute . . . by a plaintiff which contributed to [his] injury . . . shall be considered as evidence of negligence of [the] plaintiff, but the violation of said statute . . . shall not as a matter of law and for that reason alone, serve to bar [the] plaintiff from recovery.” No reason has been suggested why § 85 should not apply here.

Section 85 treats a plaintiff’s contributing violation of a criminal statute as evidence of negligence, but the violation alone does not bar recovery.

Krueger v. Fraternity of Phi Gamma Delta, Inc. · filed 2001-05-18

While the court accepts the proposition that there maybe situations where the bar will apply, it is not convinced that the instant case presents such a situation, at least not at this stage of the proceedings. Additional cases cited by defendants, most notably Gaines v. General Motors Corporation, 789 F.Sup. 38 (D.Mass. 1991), are not persuasive as they do not even attempt to harmonize the older Massachusetts case law ... with the relevant language of G.L.c. 231, §85, which went into effect only in 1974.

Section 85 permits a public policy bar to recovery when the bar rests on more than the plaintiff’s violation of a criminal statute alone.

Ryan v. Hughes-Ortiz · filed 2012-01-06

The comparative negligence statute, G. L. c. 231, § 85, does not require a different result. In providing that “[t]he violation of a criminal statute ... by a plaintiff which contributed to [the plaintiff’s] . . . death . . . shall be considered as evidence of negligence of that plaintiff, but the violation of said statute . . . shall not as a matter of law and for that reason alone, serve to bar a plaintiff from recovery,” § 85 nevertheless allows for exceptions where, as here, the decision to bar the cause of action is based not only on the plaintiff’s violation of a criminal statute, but also on public policy considerations.

Section 85 bars negligence recovery when the plaintiff’s share of negligence exceeds the defendant’s.

Sweeting v. Cairns & Bros. · filed 1992-01-27

They attributed sixty-four percent of the negligence to Sweeting and thirty-six percent to Cairns. (The defendant was entitled to judgment, therefore, on the negligence claim. See G. L. c. 231, § 85.

Section 85 bars recovery on a negligence claim when the plaintiff bears more than 50% of the responsibility for the damage.

DeSanctis v. Lynn Water & Sewer Commission · filed 1996-07-01

Because the jurors concluded that the plaintiff bore more than 50% of the responsibility for his damage, G. L. c. 231, § 85, the comparative negligence statute bars the plaintiff from recovering any damages from LWSC under a negligence cause of action.

Section 85 bars recovery when a plaintiff is more than fifty percent responsible for its own injuries.

Savers Property & Casualty Insurance v. Admiral Insurance Agency, Inc. · filed 2004-05-10

Preliminarily, Savers’s argument concerning the assessment of damages fails because, where a party is more than fifty percent responsible for its own injuries, its conduct bars any recovery.

Section 85 bars a negligence claim when the plaintiff is more than fifty percent at fault.

Palochko v. Reis · filed 2006-08-11

On negligence, the jury found that Palochko was sixty percent responsible and that Reis was forty percent responsible. This determination mandated a verdict for Reis under G. L. c. 231, § 85, the comparative negligence statute.

Section 85 bars recovery when a plaintiff’s contributory negligence exceeds the defendants’ combined negligence, and defendants bear the burden of proving it.

Shumow v. Keolis Commuter Services, LLC · filed 2025-03-31

I find that this case is one of those rare instances – Defendants have met their burden of proving that Mr. Shumow breached his duty of care and that his contributory negligence far exceeds fifty-one percent to bar recovery.

Section 85 does not apply to breach of warranty actions.

Whittenberger v. Tom O'Brien Nissan, Inc. · filed 1995-01-27

The comparative negligence statute, G.L.c. 231, §85 has no application to breach of warranty actions.

Section 85 applies only to actions for damages for negligence and does not apply to express warranty claims.

Coca-Cola Bottling Co. v. Weston & Sampson Engineers, Inc. · filed 1998-06-23

Like the statute of repose discussed above, which only applies to “action of tort,” G. L. c. 260, § 2B, the comparative negligence statute applies only to any action “to recover damages for negligence.” G. L. c. 231, § 85, as appearing in St. 1973, c. 1123, § 1. The comparative negligence statute does not apply to Coca-Cola’s express warranty claim.

Section 85 does not apply to intentional or wilful, wanton, or reckless conduct, even if the injured person was wanton or reckless.

Zeroulias v. Hamilton American Legion Associates, Inc. · filed 1999-02-19

The comparative negligence statute is inapplicable where the defendant is alleged to have wilfully, wantonly, or recklessly served alcohol to the decedent, after he was already intoxicated. It is of no import if the decedent was wanton or reckless.

Section 85 does not reduce recovery for wrongful debit of checks because that claim is subject to strict liability and the Uniform Commercial Code displaces comparative negligence.

Govoni & Sons Construction Co. v. Mechanics Bank · filed 2001-02-23

However, we agree with the Govonis that the statute is inapplicable. ... First, a claim for wrongful debit of items not properly payable under G. L. c. 106, § 4-401, is one of strict liability. ... It is settled that the comparative negligence statute does not apply to strict liability claims.

Section 85's comparative negligence rule is unavailable in criminal cases, even when negligence is measured by the standard used in tort law.

Commonwealth v. Angelo Todesca Corp. · filed 2004-12-01

There are, of course, important differences, including the heightened burden of proof in criminal cases and the unavailability of the comparative negligence statute. G. L. c. 231, § 85.

Section 85 does not apply in prosecutions for motor vehicle homicide.

Commonwealth v. Angelo Todesca Corp. · filed 2006-03-01

Of course, in a prosecution for motor vehicle homicide, unlike in tort law, the Commonwealth is held to a heightened burden of proof, and the comparafive negligence statute, G. L. c. 231, § 85, does not apply.

Section 85 does not apply to legal malpractice claims.

Clark v. Rowe · filed 1998-11-06

The inapplicability of § 85 to claims of legal malpractice does not dispose of the matter.

Section 85’s comparative negligence defense does not apply to personal injury claims for breach of the implied warranty of habitability brought by tenants or lawful visitors.

Scott v. Garfield · filed 2009-09-15

We recognize that the inapplicability of comparative negligence as a defense to a breach of warranty of habitability claim may not relieve a tenant or a lawful visitor of his or her legal responsibility to act reasonably toward a defect on the premises.

Section 85 applies when both sides are negligent, but does not apply to a plaintiff’s intentional wrongdoing.

Merrimack College v. KPMG LLP · filed 2018-09-27

But the comparative ... negligence statute does not apply where the plaintiff has engaged in intentional wrongdoing; it applies only where the plaintiff and defendant are both found to be negligent.

Section 85 changed contributory negligence law, so an older decision barring a negligent wrongful death beneficiary from recovery no longer controls.

Santos v. Chrysler Corp. · filed 1996-09-18

Additionally, since Arnold, the comparative negligence statute has been enacted and the law of contributory negligence has changed. G.L.c. 231, §85. Therefore, Arnold is not controlling.

Section 85 applies comparative negligence to negligent wrongful death beneficiaries as well as negligent decedents.

Santos v. Chrysler Corp. · filed 1999-08-25

We therefore conclude that the Legislature intended for the statute to apply both to negligent decedents and negligent beneficiaries.

Section 85’s comparative negligence defense is unavailable to a defendant who defaults and cannot be litigated at the damages hearing.

Rodriguez v. Parks & Woolson Machine Co. · filed 2007-07-10

However, the fact that comparative negligence existed prior to the adoption of the rules of civil procedure is evidence that when the legislature amended G.L.c. 231, §85 after the rules were adopted, it did not intend to impliedly affect the scope of a hearing under Mass.R.Civ.P. 55(b)(2). ... By failing to defend this action, R&L have elected to give up the affirmative defenses pled in their second amended answer. ... To allow the defaulted party not only to contest damages in a case such as this, but to litigate the issue of comparative negligence at a Rule 55(b)(2) assessment of damages hearing would distort the nature of the hearing by expanding it from the subject of damages to the subject of liability in contravention of Rule 55(b).

Section 85 allows recovery when the plaintiff is less negligent than the defendant, but reduces damages by the plaintiff’s share of negligence.

Woolf v. United States · filed 2016-09-28

In Massachusetts, contributory' negligence bars recovery if the plaintiffs negligence is greater than that of every defendant, otherwise the damage award is reduced in proportion to the plaintiffs negligence. See M.G.L. ch. 231, § 85. ... I find that Darren was negligent, and that his negligence amounted to twenty percent (20%) of all the negligence leading to his injury. The government’s negligence, accordingly, was eighty percent (80%).

Section 85 reduces a negligent plaintiff’s damages in proportion to her fault when her fault does not exceed the defendants’ total fault.

Moulding v. United States · filed 2021-07-20

If a plaintiff is negligent, but is less than fifty percent responsible, his or her damages shall be reduced in proportion to his or her comparative fault.