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.
About the Author
Keith F. Diaz, Esq. | New Hampshire Bar No. 15831
Attorney Keith F. Diaz has practiced law in New Hampshire since 2003. He began his career as a criminal prosecutor in Rockingham County before transitioning to civil litigation in 2005. Today he represents individuals in personal injury and employment law matters throughout Southern New Hampshire. He is admitted to practice before the New Hampshire Supreme Court, the New Hampshire Superior and Circuit Courts, and the United States District Court for the District of New Hampshire. He founded Apis Law in 2022.
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Frequently Asked Questions About Comparative Fault
What is comparative fault in New Hampshire?
Comparative fault reduces your recovery by your share of the blame instead of eliminating it. RSA 507:7-d provides that contributory fault "shall not bar recovery" if that fault "was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant," and that damages "shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict." New Hampshire adopted the rule in the Tort Reform Act of 1986, effective July 1, 1986.
What does RSA 507:7-d say?
RSA 507:7-d is one sentence and a burden rule. It bars recovery only where the injured person's fault is greater than the defendant's, reduces damages in proportion to that fault, and places "the burden of proof as to the existence or amount of fault attributable to a party" on the party alleging it. The jury finds your full damages without applying any percentage. The judge then applies the reduction. New Hampshire Civil Jury Instruction 8.1.
Is New Hampshire a comparative negligence state or a contributory negligence state?
New Hampshire is a modified comparative fault state. "Comparative negligence" is the same rule under an older name, and RSA 507:7-d is the statute either way. Pure contributory negligence, which bars a plaintiff who is one percent at fault, is not the law here. "Modified" means there is a cutoff: past a certain share of blame, recovery stops. In New Hampshire the cutoff is fault greater than the defendant's, or greater than all defendants' fault combined.
Can I still get compensation if I was partly at fault for the accident in NH?
Yes, as long as your fault is not greater than the defendant's. The New Hampshire Civil Jury Instructions state it in dollars: where the plaintiff and defendant are each 50 percent at fault and total damages are one dollar, the plaintiff recovers fifty cents. New Hampshire Civil Jury Instruction 8.1. Partial fault changes the size of the recovery. It does not end the claim, and an adjuster who says otherwise is describing a rule New Hampshire does not follow.
What is the 51% bar rule in New Hampshire?
It is the point at which recovery stops, and the exact line matters. Under RSA 507:7-d you are barred only if your fault is greater than the defendant's, so 51 percent bars you and exactly 50 percent does not. The jury instruction says the same thing from both directions: a plaintiff more than 50 percent legally at fault cannot recover, and a plaintiff 50 percent or less can. New Hampshire Civil Jury Instruction 8.1. A 50/50 case is a recovering case at half value.
Who has to prove comparative fault in a New Hampshire personal injury case?
The defendant does. RSA 507:7-d places the burden "upon the party making such allegation," and the jury instruction is explicit: the defendant must prove by a preponderance of the evidence that the plaintiff was legally at fault, meaning the plaintiff failed to exercise care and that failure was a substantial factor in causing the injury. New Hampshire Civil Jury Instruction 8.1. A defendant who blames someone who is not in the case carries that same burden. Goudreault v. Kleeman, 158 N.H. 236, 965 A.2d 1040 (2009).
How does comparative fault work with multiple defendants in NH?
Your fault is compared against the defendants in the aggregate rather than one at a time, which usually helps you. RSA 507:7-d. Payment then follows RSA 507:7-e, I(b): judgment enters against each liable party on joint and several liability principles, "except that if any party shall be less than 50 percent at fault, then that party's liability shall be several and not joint and he shall be liable only for the damages attributable to him." A defendant may also ask the jury to apportion fault to a non-party. DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793 (2006).
Can not wearing a seatbelt affect my personal injury claim in New Hampshire?
No, and the evidence does not even come in. The New Hampshire Supreme Court held that "evidence of a party's failure to use a seat belt is inadmissible to show negligence where the nonuse may have contributed to the party's injuries but was not a cause of the collision itself." Thibeault v. Campbell, 136 N.H. 698, 701-02, 622 A.2d 212 (1993). Negligence requires breach of an existing duty creating a foreseeable risk, and another driver's accident-causing negligence is not a danger you have a common law duty to guard against by buckling up. New Hampshire has no adult seat belt requirement, and RSA 265:107-a, IV bars using a violation of the child restraint law as evidence of contributory negligence.
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