Legal Memorandum: Applicability of a Statute of Repose in MA

Issue: Under Massachusetts law, who has the burden of proof with respect to a statute of repose?

           Research did not disclose any cases in which Massachusetts courts specifically resolved who has the burden of proof with respect to the applicability of a statute of repose.  If the statute is raised as a defense, the burden is probably the defendant’s.  It appears, however, that there is some burden on the plaintiff seeking to avoid application of the statute of repose.  See Anthony’s Pier Four, Inc. v. Crandall Dry Dock Eng’rs, Inc., 396 Mass. 818, 489 N.E.2d 172, 175 (1986).  In Anthony’s Pier Four, the defendants moved for summary judgment on the basis that the plaintiff’s claim for damage to a floating restaurant was barred by a six-year statute of repose applying to improvements to real property.  489 N.E.2d at 175.  The court noted that the plaintiff in an action “may not, of course, escape the consequences of a statute of repose or statute of limitations on tort actions merely by labelling the claim as contractual.”  Id.  The court stated that it had to look at the “gist of the action,” and it determined that the statute of repose did not bar the action.  The court pointed to the plaintiff’s allegation that the defendant promised to keep the ship permanently moored under expected conditions, and noted that if that promise was given, it constituted a contractual promise beyond the exercise of reasonable care required of members of the defendant’s profession.  Id. 

As in Anthony’s Pier Four, the question whether an action is […]