PL P asserts that this alone likely entitles it to an instruction on comparative negligence. Lawrence Savings Bank v. Levenson, 59 Mass.App.Ct. 699, 797 N.E.2d 485 (Mass.App. 2003) citing Clark v. Rowe, 428 Mass. 339, 341-45, 701 N.E.2d 624 (1998) (comparative negligence applies to a claim of legal malpractice); see also Drown v. Hebert, 340 B.R. 428, 442 (Bkrtcy.D.Mass. 2006) (builder's negligence exceeded that of debtor in connection with development where he "was aware of the risks . . . and chose to proceed with the risks; [his] damages were caused more by his own negligence . . . not Drown's misrepresentation"). As noted above, this line of argument also goes toward Affirmative Defense I (Weber assumed the risk of investing in the Riverfront Development Project).

Courts have applied the Massachusetts comparative negligence statute in cases involving professional negligence. See Clark v. Rowe, 701 N.E.2d 624, 626 (Mass. 1998) (applying the comparative negligence statute in a malpractice action against a lawyer); Drown v. Hebert (In re Drown), 340 B.R. 428, 441-42 (Bankr. D. Mass. 2006) (discussing cases).