Statute of Limitations

What is the statute of limitations for a personal injury claim in South Carolina?

•  A statute of limitations is a law establishing a deadline for when a lawsuit must be filed. The length of time allowed varies by state and the injury suffered.
• Failure to file a lawsuit within the required time limit may prevent recovery for the injury. If you do not file soon enough, you may be prohibited from filing a claim.

 Three years is the general statute of limitations for a personal injury claim in South Carolina.  S.C. Code Ann. § 15-3-530(5).

When does the statute of limitations start to run?

 In addition to determining the relevant time limitation for your injury, understanding the date by when you must file your claim depends on the “start date” of the statute of limitations. Calculating the starting point often depends on the type of injury suffered. In South Carolina, the moment at which the statute of limitations for personal injuries commences is governed by the discovery rule.  S.C. Code. Ann § 15-3-535.

 Under the discovery rule, the starting point is when a victim either knew or should have known that an injury occurred.

 Frequently, the date of an injury is the date the statute of limitations starts to run. Typically, injuries become apparent immediately upon the occurrence of an accident. For example, when a victim is involved in car wreck, suffers a dog bite, or slips and falls, the date the victim knew about his injury is almost always the same day as that accident.

Sometimes, the date the statute of limitations starts to run is later than the date of injury. Certain injuries, such as long-term side effects from medications or toxins, may not become apparent to the victim for some time after the use of the drug or exposure to the chemical. In those instances, determining the point in time when a victim should have realized he had an injury will generally be determined in court—which means a judge, jury, or other tribunal could potentially find a case time-bared by concluding a victim should have realized his injury existed earlier.  Therefore, it is essential to file a claim promptly after discovery.

Are there exceptions to the discovery rule?

In lawsuits alleging medical malpractice as the cause of the injury, the discovery rule is subject to certain caps:

• A person may not pursue a claim made more than six years after the occurrence which caused the injury, regardless of when the injury was discovered. C. Code Ann. § 15-3-545(A).
• Where the allegation of medical malpractice is based on injuries sustained from the placement of a foreign object, the claim must be brought within two years of the date of discovery, provided this time limit is not less than three years for non-government entities. C. Code Ann. § 15-3-545(B).

Can the statute of limitations ever be extended?

Although the statute of limitations, like many rules, bends to certain exceptions, those instances are limited. South Carolina relaxes this three-year bar for certain individuals based on their unique vulnerability.

• If the victim is a minor when the injury occurs, he has an additional year after his eighteenth birthday to file his claim. C. Code Ann. § 15-3-40. However, where the claim is based on an allegation of medical malpractice, this extension on the time to file will be no more than seven years.  S.C. Code Ann. § 15-3-545(D).
• If the victim is mentally incapacitated when he is injured, the time to file suit is extended up to five years from the date of injury, except where the claim alleges medical malpractice, in which case the general three-year statute of limitations applies. C. Code Ann. 15-3-40, Sims v. Amisub of S.C., Inc., 414 S.C. 109, 116, 777 S.E.2d 379, 383 (2015).

What if a person dies of the injury he suffered?

When another party’s negligence causes an injury that ultimately leads to the victim’s death, the victim’s estate (typically through a family member) may bring claims alleging wrongful death.  In some instances, the estate may also seek damages for injuries the victim suffered prior to death such as fear, physical pain and suffering, and mental and emotional distress. This is known as a survival action. Because those claims look at death as the relevant injury, the statute of limitations begins at the death of the victim, not the initial harm or accident. S.C. Code Ann. § 15-3-530(6). 

What if the harm is caused by a government entity?

If a victim sustains injuries caused by a government entity or its employee, the statute of limitations is generally two years from the date of discovery. S.C. Code Ann. § 15-78-110. A victim can expand this limit to three years if he files a “verified claim” within one year of the date of discovery.  S.C. Code Ann. § 15-78-80(d). A properly verified claim must be under oath and must set forth the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, and the amount of the loss sustained.  S.C. Code Ann. § 15-78-80, Pollard v. Cty. of Florence, 314 S.C. 397, 444 S.E.2d 534 (Ct. App. 1994).  The details of the injury dictate where a victim must file the verified claim:

• in claims made against the State, with the State Fiscal Accountability Authority, or with the agency whose employee caused the injury;
• when the claim is against a political subdivision, with the political subdivision whose employee caused the injury; or
• when the identity of the proper defendant is in doubt, with the Attorney General.

Courts have generally required strict compliance with the verified claim statute, and any defect will likely prevent a victim from garnering the benefit of the three-year statute of limitations. Joubert v. S.C. Dep’t of Soc. Servs., 341 S.C. 176, 534 S.E.2d 1 (Ct. App. 2000).  For this reason, it is best to consult an attorney as soon as possible to determine the proper course in obtaining recovery.  Improper filing could fail to extend the statute of limitations and ultimately result in a time-barred claim.

What if the injury occurs at work?

When an injury arises out of and in the course of employment, an employee may be entitled to workers’ compensation under the Workers’ Compensation Act, which contains distinct timing requirements.

A significant difference is a ninety-day notice provision, which is separate from the time allowed to file the claim.

• When the injury is due to a work accident, the employee must inform the employer of the incident within ninety days of that occurrence. Failure to give notice will not prevent recovery if the employer already knew about the accident or if failure to give notice was based on incapacity or caused by the fraud of another party.  C. Code Ann. § 42-15-20(A).
• If the injury is caused by repetitive trauma, the employee must notify the employer within ninety days of when he knew or should have known the condition was compensable. C. Code Ann. § 42-15-20(C).

In addition to this notice requirement, the Workers’ Compensation Act contains a two-year statute of limitations. The starting point for this limitation depends on the nature of the injury. S.C. Code Ann. § 42-15-40.

• When the injury is due to accident, the claim must be filed within two years of the accident, or from two years of the date of death if the accident resulted in death.
• When an employee suffers from an occupational disease, a claim must be filed within two years of the employee obtaining a definitive diagnosis that he has occupational disease.
• When the injury is due to repetitive trauma, the employee must file the claim within two years from when he knew or should have known the injury was compensable. However, the claim can in no instance be filed more than seven years after the last date the employee was exposed to the trauma.

It is important to note if your injury falls within the ambit of the Workers’ Compensation Act, any recovery may be limited to provisions of this statute.  S.C. Code Ann. § 42-1-310.  Because of the intricacies involved in determining where and when to file a claim for an injury sustained at work, consulting with an attorney ensures you know how to properly pursue recovery.

Why does the law put a limit on when you can file a personal injury lawsuit?

By limiting the time in which a lawsuit can be filed, the law invites speedy resolution and prompt relief for the injured. On a practical level, cases may become more difficult to resolve as time passes because memories fade and evidence can become harder to produce. Requiring a party to sue within a reasonable amount of time encourages more streamlined litigation.

Acting Fast is Important

It is important to contact a personal injury attorney as soon as possible after your car wreck, truck accident, injury at work, or any other issue.  Evidence can disappear if you don’t act fast.  If you don’t report your injuries in a timely fashion, it can severely harm your claim.  Don’t wait to call.  Failing to consult an attorney could lead to a mistake and a mistake could cost you thousands.  Call George Sink, P.A. Injury Lawyers today for a free case review; we’ll ensure your claim gets taken care of right away, before you lose your rights to get paid for your medical bills, pain and suffering, or other damages.  The call is free and the case review is free.