G.L. c. 260, § 2A; G.L. c. 231, §§ 6B, 85, 85K; G.L. c. 258, § 4
Negligence in Massachusetts — three years, a 51 percent bar, and a $20,000 charity cap
A claim in Massachusetts trial courts · Last verified August 26, 2026
Negligence is the general-purpose tort, and in Massachusetts three statutes decide most of what a negligence case is worth before the facts are reached.
Comparative negligence reduces the award by the plaintiff's share and bars it entirely past 50 percent. Prejudgment interest adds 12 percent a year from filing. And the charitable immunity cap limits a claim against a charity to $20,000 — which reaches hospitals, universities and churches, and surprises nearly everyone who meets it for the first time.
What the claim is
Someone was careless and it injured you or damaged your property.
Where the right comes from
Common law.
What a plaintiff has to prove
- A duty of reasonable care owed to the plaintiff;
- Breach of that duty;
- Causation — both actual cause and proximate cause; and
- Damages.
Duty is a question of law for the judge, and it is where most defence motions aim. Breach and causation belong to the jury.
Comparative negligence — the 51 percent bar
G.L. c. 231, § 85 replaced contributory negligence with a modified comparative system.
A plaintiff who is 50 percent or less at fault recovers, reduced in proportion to their share. A plaintiff who is 51 percent or more at fault recovers nothing.
Two mechanics matter. Damages "shall be diminished in proportion" to the plaintiff's negligence — so 30 percent fault on a $100,000 verdict returns $70,000. And where several defendants are sued, the plaintiff's share is compared to the combined negligence of all of them, which makes the bar much harder for a defendant to reach in a multi-defendant case.
The charitable immunity cap
G.L. c. 231, § 85K is the provision that most changes the value of a Massachusetts negligence case, and it is easy to miss because the defendant looks like an ordinary institution.
Being a charity is not a defence to a tort claim. But where the tort was committed "in the course of any activity carried on to accomplish directly the charitable purposes" of the organisation, liability "shall not exceed the sum of twenty thousand dollars exclusive of interest and costs."
A separate figure applies to medical care: in "medical malpractice claims against a nonprofit organization providing health care," the cause of action "shall not exceed the sum of $100,000, exclusive of interest and costs."
Non-profit hospitals, universities, schools and religious organisations routinely qualify. A catastrophic injury at a charitable institution can be worth $20,000.
The cap has a real limit, and it is the plaintiff's best argument. Section 85K provides that the limitation does not apply "if the tort was committed in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes." A charity's parking garage, its rental property, its gift shop or its catering operation may fall outside the cap even though the entity itself is charitable.
How long you have to file
Three years under G.L. c. 260, § 2A, from the injury. The discovery rule applies where the plaintiff did not know and could not reasonably have known of the harm or its cause.
For a minor, the period is tolled during minority. For a claim against a public employer, see below.
What has to happen before you file
Nothing, against a private defendant.
Against a public employer, presentment. The Massachusetts Tort Claims Act, G.L. c. 258, § 4, requires a written presentment of the claim to the proper executive officer within two years of the date the cause of action arose, and suit within three years. Missing the presentment deadline bars the claim, and it is the most common way a good case against a city, town or state agency is lost.
For snow and ice, or a defect in a way, 30 days. See premises liability for the c. 84 notice provisions and how far they reach.
What the claim pays
Economic damages — medical expenses, lost earnings, lost earning capacity, property damage.
Non-economic damages — pain and suffering, loss of function, disfigurement, loss of enjoyment of life. Massachusetts imposes no general cap on these outside medical malpractice.
Twelve percent prejudgment interest under G.L. c. 231, § 6B, running from the date the action was commenced — not from the injury. Simple, not compounding. Note the contrast with contract cases, where § 6C runs interest from the breach. In tort, delay before filing costs the plaintiff interest.
No punitive damages. Massachusetts does not allow punitive damages in the absence of a statute authorising them, which is one of the sharpest differences between this state and most others. The statutory exceptions include wrongful death, where c. 229 § 2 sets a $5,000 floor for reckless conduct.
No attorney's fees, absent a statute.
Loss of consortium, to a spouse and in some circumstances a child or parent, as a separate but derivative claim.
Who can be sued
Anyone whose carelessness caused the harm, including an employee personally.
An employer, for an employee's negligence within the scope of employment.
A public employer, under the Tort Claims Act, subject to presentment, the statutory damages cap, and the Act's exclusions — and note that the public employee is generally immune where the Act applies.
A charity, subject to § 85K.
Related theories worth knowing
Negligence per se does not exist as such in Massachusetts. Violation of a statute or regulation is evidence of negligence the jury may consider; it does not establish it. This differs from most states and is a frequent source of error.
Gross negligence matters where a statute or a release turns on it. It is more than ordinary inadvertence — voluntary and conscious indifference to the consequences.
Negligent infliction of emotional distress requires, among other things, objective corroboration of the distress, and is treated as its own claim.
Common defenses
- Comparative negligence, reducing or barring recovery at the 51 percent line.
- No duty owed, decided by the judge.
- No causation, actual or proximate.
- The charitable cap — not a defence to liability, but a ceiling on it.
- Governmental immunity and the Tort Claims Act exclusions, plus failure to present.
- Limitations — three years, and 30 days for snow, ice or way defects.
- Assumption of risk is not a defence. It was abolished as a bar in Massachusetts; the conduct is folded into comparative negligence instead.
What people get wrong
Being partly at fault does not end the case. Up to 50 percent, you recover a reduced award.
A hospital or university may cap your claim at $20,000. This is the single most consequential surprise in Massachusetts tort practice — and the commercial-activity exception is the way around it where the facts allow.
Breaking a safety rule is evidence, not proof. Massachusetts has no negligence per se.
There are no punitive damages without a statute, whatever the defendant did.
Interest runs from filing, not from injury. Waiting to file costs money in a tort case.
Where it came from
Massachusetts negligence law is ordinary common law with an unusual statutory overlay, and the overlay has two different vintages.
Comparative negligence arrived in 1969, replacing a contributory-negligence rule that barred any plaintiff who contributed at all to their own injury. That reform ran in the plaintiff's favour and brought Massachusetts in line with most of the country.
Charitable immunity went the other way and never left. The old common-law rule gave charities complete immunity from tort liability, on the theory that funds donated for charity should not be diverted to pay judgments. Most states abolished it outright. Massachusetts abolished the immunity and replaced it with a cap — $20,000, a figure set decades ago and never indexed, so inflation has done what the legislature did not and reduced it to a fraction of its original meaning. The 2012 amendment raising the figure to $100,000 for medical malpractice against non-profit health-care providers is the only adjustment the Legislature has made.
Common questions
How long do I have to file a negligence claim in Massachusetts?
Three years from the injury, subject to the discovery rule. Two years for presentment against a public employer, and 30 days' notice for snow, ice or a defect in a way.
What if I was partly at fault?
You still recover if you were 50 percent or less at fault, reduced by your share. At 51 percent or more you recover nothing.
Can I recover punitive damages?
No, unless a statute provides for them. Wrongful death is the main exception.
Is there a cap on damages?
Not generally — but a claim against a charity is capped at $20,000, or $100,000 for medical malpractice against a non-profit health-care provider, unless the activity was primarily commercial.
Can I recover attorney's fees?
No, absent a statute.
Does breaking a safety law prove negligence?
No. In Massachusetts it is evidence of negligence for the jury to weigh.