Massachusetts Appeals Court extends protections of the Statute of Repose


By: David A. Slocum

In an important recent decision, the Massachusetts Appeals Court has extended the protections of the Massachusetts Statute of Repose to a painter of parking lot markings.

In Adam C. Smith v. Andrew Divoll, the plaintiff (Smith) lost a leg while operating his motorcycle as a result of a motor vehicle crash with a car that was exiting a restaurant parking lot. Smith alleged that the collision occurred, in part, due to a flawed design and improper layout of the painted lines in the restaurant parking lot, which allegedly did not afford drivers exiting the parking lot an adequate view of oncoming traffic. The defendant (Divoll), a professional painter, performed the layout and painting of the parking lot on or before November 22, 2011.

The Massachusetts Appeals Court held Divoll was entitled to summary judgment in his favor – meaning a complete dismissal of the claims against him without the need for trial – because the parking lot painting activities at issue fell within the protections of the Massachusetts Statute of Repose, G. L. c. 260, § 2B. That statute provides in relevant part, an “[a]ction of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property …[must be] commenced [within] six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner….”

The question before the Court in Smith v. Divoll was whether the layout and painting of a parking lot fell within the protection of the statute. Holding that they do, the Court reasoned that the parking lot lines and arrows painted on the pavement were an “improvement to real property” within the meaning of the statute because without them, “the parking lot was an undifferentiated area of asphalt on which cars might park or drive willy-nilly;” they provide safety and order for drivers and pedestrians and allow for an efficient use of the space for the benefit of the property owner. The Court reasoned that because the parking lot lines were custom designed for the particular piece of property; and because they were based on the size and features of the property, applicable local rules and regulations, and the needs of the owner, they constituted a custom improvement to real property within the scope of the Statute of Repose. As such, because the lawsuit was brought more than six years after Divoll provided the layout and painting services, the Court held Divoll was entitled to dismissal of the plaintiff’s claims.

This is the first case in Massachusetts to hold that the Statute of Repose applies to the layout and painting of parking lot lines. In addition to establishing the reach of the statute in that specific scenario, the decision provides important guidance as to what other types of work or services will and will not fall within the protection of the Massachusetts Statute of Repose in future cases.

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