140 N.H. 180 | N.H. | 1995
This is an interlocutory appeal from a ruling in the Superior Court (McHugh, J.) dismissing the plaintiff’s action against defendants Barry Hyman, Inc. (Hyman) and Chestnut Hill Construction, Inc. (Chestnut Hill) based on the statute of limitations. We affirm and remand.
Through discovery, the plaintiff learned that the defect in the loading dock may have been caused by the negligence of defendants Hyman and Chestnut Hill. Consequently, he added them to his action against Bruk in May 1992. Hyman moved to dismiss based on the expiration of the statute of limitations. Chestnut Hill was allowed to join Hyman’s motion. Following a hearing at which the parties were allowed to make offers of proof and legal arguments, the court found that the lawsuits against Hyman and Chestnut Hill were barred by the statute of limitations. This interlocutory appeal followed.
On appeal, the plaintiff argues that the defendants failed to meet their burden of pleading and proving the statute of limitations.
The plaintiff correctly notes that the statute of limitations constitutes an affirmative defense, Exeter Hospital v. Hall, 137 N.H. 397, 399, 629 A.2d 88, 89 (1993), and that the defendant bears the burden of proving that it applies in a given case, cf. State v. Soucy, 139 N.H. 349, 353, 653 A.2d 561, 564 (1995) (defendant bears the burden of proving an affirmative defense). That burden, however, is met by a showing that the action was not “brought . . . within 3 years of the act or omission complained of.” RSA 508:4, I (Supp. 1994). Once the defendant has established that the statute of limitations would bar the action, the plaintiff has the burden of raising and proving that the discovery rule is applicable to an action otherwise barred by the statute of limitations. See Henderson v. Jones Bros. Const. Corp., 602 N.E.2d 16, 18 (Ill. App. Ct. 1992); Doe v. Cherwitz, 518 N.W.2d 362, 364 (Iowa 1994); Franklin v. Albert, 411 N.E.2d 458, 463 (Mass. 1980); Olson v. A.H. Robins Co., Inc., 696 P.2d 1294, 1297 (Wyo. 1985). In this case, the plaintiff failed to sustain that burden.
At the time of his injury, the plaintiff knew that his injury was caused by a defect in the loading dock. The plaintiff, however, argues that at the time of his injury, he did not know that negligence by defendants Hyman and Chestnut Hill may have caused his injury. The plaintiff misconstrues the purpose of the discovery rule.
The discovery rule applies only in situations where the “injury and its causal relationship to the act or omission were not
The interlocutory appeal statement presents the question of whether an evidentiary hearing was required in order for the trial court to determine whether the discovery rule applied. That question, however, was not briefed. Therefore, we will not address it. State v. Smart, 136 N.H. 639, 661, 622 A.2d 1197, 1211, cert. denied, 114 S. Ct. 309 (1993).
Affirmed and remanded.