Comparative Fault in New Hampshire Personal Injury Cases
Protecting Your Rights
What happens when the insurance company says the personal injury accident was partly your fault — and what it really means for your claim under New Hampshire law.
What Is Comparative Fault?
One of the first things an insurance company will do after an accident is look for ways to blame you. Even when the other driver clearly caused the car crash, and it's a total loss, the insurer may argue that you were speeding, failed to brake in time, or were distracted. Their goal is simple: reduce the amount they have to pay you.
This is where New Hampshire’s comparative fault law comes into play. Under RSA 507:7-d, New Hampshire follows a “modified comparative fault” system. This means that even if you were partially at fault for the accident, you may still be entitled to compensation, but your award will be reduced in proportion to your share of the blame.
The critical threshold: You can recover damages as long as your fault does not exceed the fault of the defendant (or the combined fault of all defendants). In practical terms, if you are found to be 50% or less at fault, you can still recover. If you are found to be 51% or more at fault, you are barred from recovery entirely.
The 50% Rule at a Glance
50% or less your fault → You CAN recover (reduced by your percentage of fault)
51% or more your fault → You CANNOT recover anything
How Comparative Fault Works in Practice
Understanding the math behind comparative fault is important. Your total damages are calculated first, and then reduced by your percentage of fault. Here is how this plays out in real scenarios:
Scenario | Your Fault | Total Damages | Reduction |
|---|---|---|---|
Rear-ended at red light | 0% | $100,000 | $0 |
Slightly over speed limit | 20% | $100,000 | –$20,000 |
Ran yellow light | 40% | $100,000 | –$40,000 |
Equal fault | 50% | $100,000 | –$50,000 |
Mostly at fault | 51% | $100,000 | N/A |
As you can see, the difference between 50% and 51% fault is enormous. It's the difference between receiving $50,000 and receiving nothing. This is exactly why insurance companies push so hard to shift blame onto you, and why having an experienced attorney on your side is critical.
Comparative Fault with Multiple Defendants
Accidents often involve more than two parties. A multi-vehicle pileup in Goffstown, an accident in Manchester involving both a negligent driver and a poorly maintained road, or a crash in Concord caused by a defective vehicle part and driver error. These situations raise important questions about how fault is divided.
Under New Hampshire law (RSA 507:7-d and RSA 507:7-e), when there are multiple defendants, the key question is whether your fault exceeds the combined fault of all defendants in the aggregate. This is a crucial distinction that works in your favor.
How Aggregate Fault Helps You
Suppose you are in a three-car accident in Bedford, New Hampshire. A jury determines the total damages are $200,000 and assigns fault as follows: you are 30% at fault, Driver A is 20% at fault, and Driver B is 50% at fault. Because the defendants’ combined fault is 70% (well above your 30%), you are entitled to recover. Your award would be reduced by your 30% share, resulting in a recovery of $140,000.
Joint and Several Liability
New Hampshire also applies the doctrine of joint and several liability in certain circumstances. Under RSA 507:7-e, if a defendant is 50% or more at fault, that defendant can be held jointly and severally liable, meaning you can potentially collect the full amount of the judgment from that defendant, even if the other defendants cannot pay. However, if a defendant is less than 50% at fault, that defendant’s liability is several only, meaning they are responsible only for their proportionate share.
Why this matters: If one defendant has substantial insurance coverage or assets and another does not, the joint and several liability rules can significantly affect how much compensation you actually receive. An experienced attorney can structure the case and trial strategy to maximize your real-world recovery.
How Insurance Companies Use Comparative Fault Against You
Insurance adjusters are trained to minimize payouts. Comparative fault is one of their most powerful tools, and they will use it aggressively from the very first phone call after your accident. Here are the most common tactics we see:
Recorded Statements
Shortly after the accident, the other driver’s insurance company will call and ask for a recorded statement. They will frame this as routine, but the real purpose is to get you to say something that can be used to increase your percentage of fault. Leading questions like “Could you have braked sooner?” or “Did you see the other car before the impact?” are designed to create admissions of partial fault.
Surveillance
Insurance companies regularly conduct surveillance on claimants. They may hire investigators to follow you, photograph you, or monitor your social media accounts. If they catch you doing something that appears inconsistent with your injury claims, something taken out of context, they will use it to argue that you contributed to your own damages or that your injuries are exaggerated.
Selective Use of Evidence
Adjusters will cherry-pick evidence that supports their narrative. They may focus on a single witness statement that suggests you were distracted while ignoring five other witnesses who confirm the other driver ran the red light. They may cite a minor traffic violation in your past to paint a picture of reckless behavior.
Lowball “Quick Settlement” Offers
Sometimes the insurer will acknowledge liability but make a fast, low offer before you understand the full extent of your injuries or the impact of comparative fault on your claim. They know that once you sign a release, you cannot come back for more, even if your injuries turn out to be far worse than initially thought.
Protect Yourself After an Accident -
Read Our Free Article: What to Do After A Car Accident
✅ Do not give a recorded statement to the other driver’s insurance company without speaking to an attorney first
✅ Be careful about what you post on social media — insurance companies will review it
✅ Do not admit fault at the scene of the accident, even if you think you may have been partially responsible
✅ Do not accept a settlement offer before consulting with an attorney who can evaluate your full claim
✅ Make sure its not too late to make a claim! - Read About Statute of Limitations Here
Common Scenarios Where Comparative Fault Arises
Comparative fault can come into play in virtually any type of personal injury case. Here are some of the most common situations we handle:
Car Accidents
The most common comparative fault disputes involve car accidents. The insurance company may argue you were speeding, distracted by your phone, failed to wear a seatbelt, made an improper lane change, or failed to yield. Even if you were doing one of these things, it does not mean you caused the accident. It means the jury may assign you a percentage of the fault, which reduces but does not necessarily eliminate your recovery.
Motorcyclists face a unique challenge with comparative fault because juries may be biased against them, believing that riding a motorcycle is inherently risky. Insurance companies exploit this by arguing that the rider was weaving, riding too fast, or not wearing appropriate protective gear. An experienced attorney knows how to combat these stereotypes and focus the jury on the actual evidence.
Drivers may argue that a pedestrian was jaywalking, wearing dark clothing at night, or distracted by a phone. Cyclists may be blamed for not using a bike lane, failing to signal, or riding against traffic. While these factors may contribute to a finding of partial fault, they rarely excuse a driver’s failure to exercise reasonable care around vulnerable road users.
Property owners frequently argue that the injured person should have been watching where they were going, was wearing inappropriate footwear, was in an area where they shouldn’t have been, or ignored warning signs. Even if some of these arguments have merit, the property owner still has a legal duty to maintain safe conditions, and their negligence may still be the primary cause of the injury.
Crashes involving commercial trucks often involve multiple potentially liable parties: the truck driver, the trucking company, the vehicle manufacturer, and maintenance providers. These cases frequently involve comparative fault arguments among the defendants as well, which can actually benefit the injured plaintiff by ensuring total defendant fault remains high relative to any fault attributed to you.
The Seatbelt Defense in New Hampshire
One of the most common comparative fault arguments involves seatbelt use. If you were not wearing a seatbelt at the time of the accident, the defense may argue that your injuries would have been less severe had you been buckled in. This is known as the “seatbelt defense.”
New Hampshire is one of the few states that does not require adults to wear seatbelts by law. However, this does not necessarily prevent the defense from arguing that your failure to wear a seatbelt contributed to the severity of your injuries. The admissibility and impact of seatbelt evidence in New Hampshire personal injury cases is a nuanced legal issue that requires careful handling by experienced counsel.
Who Has the Burden of Proof?
This is a critical point that many people don’t realize: under New Hampshire law, the burden of proving comparative fault falls on the party raising it. RSA 507:7-d states that the party alleging fault bears the burden of proving both its existence and its amount.
In practical terms, this means the defendant (or their insurance company) must prove that you were at fault and must prove how much fault to assign to you. You do not need to prove that you were free from fault. This is an important procedural advantage. The insurance company doesn’t get to simply claim you were 30% at fault without evidence to back it up.
What this means for your case: If the insurance company claims you were partially at fault, they need to prove it. Our job is to challenge their evidence at every turn, present counter-evidence, and ensure that any fault assigned to you is minimized or eliminated entirely.
How We Fight Comparative Fault Arguments
At our firm, we understand that a comparative fault defense can make or break your case. That’s why we take an aggressive, evidence-driven approach to minimizing or eliminating any fault attributed to you. Our strategy includes:
Thorough Accident Investigation
We conduct our own independent investigation of every accident. This includes visiting the scene, photographing conditions, reviewing police reports, obtaining traffic camera or surveillance footage, and consulting with accident reconstruction experts when necessary. We do not rely on the insurance company’s version of events.
Witness Identification and Preparation
Eyewitness testimony can be decisive in comparative fault disputes. We identify and interview witnesses early, before memories fade, and we prepare them thoroughly for depositions and trial testimony.
Expert Testimony
In complex cases, we retain accident reconstruction experts, engineers, biomechanical experts, and other specialists who can testify about exactly how the accident occurred, who was at fault, and why the insurance company’s version doesn’t hold up under scientific scrutiny.
Challenging the Insurance Company’s Evidence
We scrutinize every piece of evidence the defense presents. If they rely on a biased witness, we expose the bias. If they misrepresent the accident scene, we present the real evidence. If they use junk science, we bring in credible experts to refute it.
Strategic Negotiation and Litigation
Many comparative fault cases settle before trial, but the strength of our trial preparation is what drives favorable settlements. Insurance companies know which firms are willing to go to trial and which will accept a lowball offer. We prepare every case as if it’s going to trial, and that preparation gives us leverage at the negotiating table.
Don’t Let the Insurance Company Blame You
Being told that the accident was partly your fault can be frustrating and disheartening, especially when you’re dealing with injuries, medical bills, and the disruption to your life. But here’s what you need to know: being partially at fault does not mean you don’t deserve compensation. New Hampshire law protects your right to recover damages even when you share some of the blame.
The insurance company is not on your side. Their job is to pay as little as possible, and shifting blame onto you is one of their most effective tools for doing that. You need someone in your corner who understands New Hampshire’s comparative fault laws, knows how to challenge the insurance company’s narrative, and has the experience and resources to fight for full and fair compensation
Free Consultation — We Only Get Paid If You Win
If you’ve been injured in an accident and the insurance company is trying to blame you, contact us today. Apis Law offers a free, no-obligation consultation where we’ll review the facts of your case, explain how comparative fault may affect your claim, and outline a strategy for maximizing your recovery. Attorney Diaz works on a contingency-fee basis, which means you pay nothing unless we win your case.
New Hampshire Litigaton
Why Clients Choose Apis Law
No case managers. No paralegal runaround. Keith F. Diaz handles your case personally and returns your calls the same day.
20+
Years of Experience
3
Practice Areas
1
Attorney on Your Case
📍
New Hampshire Litigation Experience
Decades of experience in New Hampshire courts — from superior court to federal district court — providing practical insight into local rules, procedures, and judicial expectations across every county.
✅
Focused Practice Areas
Concentrated practice in personal injury, wrongful termination, workplace discrimination, wage & hour violations, and real estate disputes — enabling precise issue spotting and effective case development.
📋
Evidence-Driven Case Strategy
Every matter is built on documentation, witness testimony, expert analysis, and a realistic assessment of how courts, insurers, and opposing counsel evaluate risk. Strategy grounded in facts and law — not assumptions.
👨🏾⚖️
Direct Access to Your Attorney
Work directly with the attorney handling your case. No layers of case managers or junior associates. Communication is direct, timely, and structured to support informed decision-making.
⚖️
Prepared for Settlement or Trial
Cases are developed with litigation in mind from day one. Whether a matter resolves through negotiation, mediation, or trial, Apis Law prepares each case as if it will be presented in court.
📞
Contact Apis Law
If you are looking for an experienced New Hampshire litigation lawyer to evaluate a personal injury claim, employment law dispute, or real estate matter, Apis Law is prepared to review your case and explain your legal options.