How waivers and partial fault affect personal injury claims

On Behalf of | Apr 3, 2020 | Personal Injury

Persons injured in Massachusetts may be entitled to damages — even if they were partially at fault for the incident, and even if they signed a waiver. The recovery of damages in a personal injury claim depends generally upon the degree of due care each party exercised. 

State legal code and case law support contributory negligence on the part of a plaintiff. They also condemn gross negligence on the part of a defendant. 

Contributory negligence 

Massachusetts allows that a plaintiff may be eligible for damages even if he or she was partially at fault or even committing a crime at the time of the incident. Criminal acts qualify as fault, but they do not necessarily bar the plaintiff from receiving damages. 

When an incident occurs, courts will evaluate the degree of fault of each party as a percentage. For example, if a woman carelessly runs out in front of a car and a texting driver runs into her, a court may perhaps assign 40% of fault to the woman and 60% to the driver. 

The percentage of fault of the plaintiff will correlate with a reduction in damages the defendant owes. A court assumes the injured party to be “in the exercise of due care” unless the defendant can show otherwise. 

Ordinary and gross negligence 

Many do not file a personal injury claim because they signed a waiver before the incident. Waivers do a great deal to protect entities from lawsuit, but Massachusetts case law allows them to be nonbinding under certain conditions. 

If the person signed the waiver under coercion or duress, the waiver may be null. The coercion typically must be substantial for a court to recognize it, however. It is rarely coercion to make a waiver a prerequisite to participation in an activity. 

Similarly, the waiver may be invalid if it was deceptive in wording or if the person administering it represented it deceptively. Most importantly, a waiver can protect ordinary negligence, but gross negligence is another matter. Someone cannot use a waiver as an excuse to behave recklessly or to disregard the safety of others. 


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