What Is Comparative Negligence in New Hampshire? A Plain-English Guide for Injured People
- Keith Diaz
- Apr 20
- 7 min read
If you were hurt in New Hampshire and you think you might be partly to blame for what happened, you can still recover money — as long as you were 50% or less at fault. New Hampshire follows a rule called modified comparative negligence, codified at RSA 507:7-d. Your compensation for personal injury is reduced in proportion to your share of the blame, and you lose the right to recover only if a jury decides you were more than 50% responsible. This post explains how the rule actually works, how insurance adjusters try to use it against you, and what the New Hampshire Supreme Court has said about it.
The rule in one sentence
Under RSA 507:7-d, a plaintiff in New Hampshire is barred from recovery if the plaintiff's fault was "greater than" the combined fault of the defendants. Fifty-fifty is still recoverable. Fifty-one percent is not.
The New Hampshire Civil Jury Instruction that judges read to jurors puts it this way:
"A plaintiff who is more than 50% legally at fault for the accident cannot recover damages arising out of the accident. If a plaintiff is 50% or less legally at fault, he or she can recover damages — but only in proportion to the amount of the defendant's legal harm."
That instruction comes from Chapter 8 of the New Hampshire Civil Jury Instructions and is rooted in a line of Supreme Court decisions going back to Jackson v. Smart, 89 N.H. 174 (1937).
A simple example
Suppose a jury finds that your total damages from a car crash are $100,000 — the full cost of your medical bills, lost wages, and pain and suffering. The jury is then asked to apportion fault:
You are 0% at fault. You recover the full $100,000.
You are 20% at fault. Your award is reduced by 20%. You recover $80,000.
You are 50% at fault. Your award is reduced by 50%. You recover $50,000.
You are 51% at fault. You recover nothing.
The 50%/51% line is called the "threshold" or "bar." It is why comparative negligence fights are so often the difference between a real recovery and nothing at all.
Why insurance adjusters care about comparative negligence
Adjusters have one job: pay as little as possible to close the claim. Comparative negligence is the biggest lever they have. Every percentage point of fault they can pin on you reduces the check they have to write, and if they can push you past 50%, the check becomes zero.
Here are tactics you should expect:
Recorded statements early. An adjuster may call within days of the accident and ask you to "tell us what happened." Anything you say that sounds like you did something wrong — "I was in a hurry," "I looked down for a second," "I had the radio on" — gets written into a claim file and later used to argue you were partly at fault. You are not required to give a recorded statement to the other driver's insurance company.
Framing the facts against you. Adjusters write claim notes in the passive voice or reframe events. A rear-end collision becomes "sudden braking by the plaintiff." A slip-and-fall becomes "patron walked through a visibly wet area." Their job is to manufacture a theory of plaintiff fault that the defense lawyer can later argue to a jury.
Citing driver-inattention statutes. In a motor vehicle case, expect the adjuster to reference RSA 265, New Hampshire's rules of the road. Even a citation you were never charged with can be argued as evidence of negligence.
Low-ball based on apportionment. An offer of "50 cents on the dollar" is often justified internally by a claim of 50% comparative fault, even when the evidence doesn't support it. The offer is the tactic.
What the New Hampshire Supreme Court has actually said
Four decisions are worth knowing about:
Broughton v. Proulx, 152 N.H. 549 (2005)
This is the core contemporary case on RSA 507:7-d. The trial court instructed a jury that a plaintiff is entitled to place "some reliance" on a defendant's performance of his duty of care. The Supreme Court approved the instruction. The practical meaning: you are not expected to anticipate every unreasonable act by another driver, property owner, or dog owner. Their duty of care exists, and you are allowed to act as if they will meet it.
Bohan v. Ritzo, 141 N.H. 210 (1996)
Cited in the Civil Jury Instructions as a foundational authority. It confirms that comparative fault applies in ordinary negligence cases, not just motor vehicle collisions. The same rule applies to slip-and-fall, dog-bite, and premises cases.
Nilsson v. Bierman, 150 N.H. 393 (2003)
A more technical case, but important when multiple defendants are involved. Nilsson held that RSA 507:7-h and 507:7-i, which reduce a plaintiff's judgment by the amount of a settlement with a joint tortfeasor, apply only to defendants who are both jointly and severally liable. Translation: if you settle with one defendant and go to trial against another, the remaining defendant cannot always credit their verdict with what you already collected.
Goodreault v. Kleeman, 158 N.H. 236 (2009)
A medical malpractice case that established an important rule: when a defendant argues a non-party was partly at fault, the defendant carries the burden of proof on that claim. "A defendant who raises a non-litigant apportionment defense essentially becomes another plaintiff who must seek to impose liability on a non-litigant just as the plaintiff seeks to impose it on him." This matters whenever an insurance company tries to blame someone who is not a party to the lawsuit — a phantom driver, a non-party contractor, or a prior treating physician.
How fault is actually decided
In New Hampshire, comparative fault cases are decided by a jury using a special verdict form. The Civil Jury Instructions Committee recommends, and Madeja v. MPB Corp., 149 N.H. 371 (2003) requires that the form ask jurors, in order:
1. Was the defendant legally at fault to any degree? 2. Was the plaintiff legally at fault to any degree? 3. If both, what percentage of the total fault belongs to each party? 4. What is the total dollar amount of the plaintiff's damages, without regard to percentage of fault?
The judge, not the jury, does the arithmetic. If the jury returns $100,000 and finds the plaintiff 30% at fault, the judge enters judgment for $70,000. The jury is specifically told: determine the full amount; the judge will reduce it.
What this means for your case
A few practical takeaways for anyone who is injured in New Hampshire and worried that something they did might have contributed:
Do not assume you are "too much at fault" to have a case. The cutoff is 50%, not some vague intuition of "I might have done something wrong." If you were a defensive-driving motorist who glanced at a dashboard for a moment before being hit by a driver running a red light, you are not 51% at fault, regardless of what the adjuster tells you.
Do not give a recorded statement to the other side. You have no obligation to. Everything you say is a potential building block for comparative negligence.
Preserve evidence of the other side's fault early. Photos of the scene, witness names, dashcam footage, medical records, the police report, and, in premises cases, incident reports and surveillance video. Comparative fault is a battle of narratives, and the party with the better-documented narrative wins.
Get a lawyer before you accept any apportionment. The adjuster's "you're 50% at fault, so we'll offer half" is not a legal finding. It is a negotiating position. Only a jury or a settlement you agree to with full advice of counsel determines fault.
Frequently asked questions
What if I was partly at fault — can I still sue in New Hampshire?
Yes, as long as you were 50% or less at fault. Under RSA 507:7-d, New Hampshire follows the modified comparative negligence rule. You recover damages reduced by your percentage of fault. If you are found 30% at fault on a $100,000 claim, you recover $70,000. If you are found 51% or more at fault, you recover nothing. See Broughton v. Proulx, 152 N.H. 549 (2005).
Who decides my percentage of fault?
A jury, using a special verdict form that asks for the percentage of fault attributable to each party. The judge then applies that percentage to reduce the total damages award. See Madeja v. MPB Corp., 149 N.H. 371 (2003). If the case settles before trial, your percentage is negotiated with the insurance company, which is why having an attorney argue it on your behalf matters.
Does the insurance company's percentage apply?
No. An adjuster's opinion that you are "50% at fault" has no binding legal effect. It is a negotiating position. Only a jury verdict or a settlement you agree to fixes your percentage.
Does New Hampshire's rule apply to slip-and-fall or dog bite cases, not just car accidents?
Yes. RSA 507:7-d applies across all personal injury claims in New Hampshire — motor vehicle, premises liability, dog bite, product liability, and medical malpractice. The 50% threshold is the same regardless of the type of case.
What if more than one person was at fault?
Their percentages are added together, and your percentage is compared to the combined total. As long as your fault is not greater than the defendants' combined fault, you can recover. And under Goodreault v. Kleeman, 158 N.H. 236 (2009), if a defendant seeks to shift liability to someone not in the lawsuit, that defendant bears the burden of proving it.
External legal resources
New Hampshire RSA 507:7-d — full statute text at Justia
New Hampshire Supreme Court opinions — NH Courts opinions archive
New Hampshire Bar Association — nhbar.org
Related reading on apislaw.com
Talk to a New Hampshire personal injury attorney
If an insurance company is arguing that you were partly or mostly at fault for your own injury, do not accept their number. Apis Law offers a free consultation to New Hampshire injury victims. Attorney Keith F. Diaz has 22 years of trial experience and handles personal injury cases across Goffstown, Manchester, Bedford, Concord, Nashua, and throughout the state.
Call (603) 785-1013 or visit apislaw.com to schedule a free consultation.
About the Author: Keith F. Diaz, Esq. is the founder of Apis Law, PLLC, a New Hampshire personal injury and employment law firm. Attorney Diaz has 22 years of legal experience and is admitted to practice in the State of New Hampshire (Bar No. 15831), the U.S. District Court for the District of New Hampshire, and the First Circuit Court of Appeals. He founded Apis Law in 2022 to provide dedicated, client-focused representation to individuals and families throughout New Hampshire.
This article is general information, not legal advice. Reading this article does not create an attorney-client relationship with Apis Law, PLLC. Every case is different; if you have been injured in New Hampshire, contact a licensed attorney for advice about your specific situation.
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