Answers to some of the most common questions about personal injury lawsuits in the Palmetto State
If you’ve been injured in an accident, you’re likely dealing with pain, medical bills, and missed time at work. On top of all that, you’re probably wondering if a civil lawsuit is an option for you.
To reduce some of your anxiety, here are some brief answers to frequently asked questions about personal injury lawsuits in South Carolina.
Q: What is a personal injury lawsuit?
A personal injury lawsuit (sometimes called a “tort lawsuit”) is a civil (not criminal) lawsuit filed when one person suffers physical or mental harm as a result of someone else’s actions or inactions.
The person filing the lawsuit is called the “plaintiff” and the person being sued is called the “defendant.”
Common sources of personal injury lawsuits include:
Q: How do I file a personal injury lawsuit in South Carolina?
A personal injury lawsuit officially begins when you file and serve the following legal documents:
- The complaint. The complaint is a concise statement of the factual and legal basis for the lawsuit.
- The summons. The summons is an official notice of a lawsuit.
Once the summons and complaint are filed and served, the defendant will have an opportunity to respond. The court will then issue a “scheduling order,” setting forth the important steps and deadlines of the litigation process.
Most personal injury cases in South Carolina are filed in state-level trial courts. In South Carolina, the state-level trial courts are called “circuit courts.”
Circuit courts are courts of general jurisdiction, meaning they can hear any type of case. There are no damage restrictions, so you can file a lawsuit in circuit court whether you’re claiming $10 or $10 million in damages.
Q: How long do I have to file a personal injury lawsuit in South Carolina?
The statute of limitations refers to the law that sets forth the amount of time a plaintiff has to file a lawsuit.
It’s important that you know the amount of time you have to file your lawsuit because once the time runs out you’re permanently barred from filing your lawsuit and recovering damages.
In South Carolina, plaintiffs generally have 3 years from the date of the injury to file a personal injury lawsuit.
There are some exceptions to the 3-year statute of limitations.
For example, if the plaintiff is suing the government, the plaintiff has 2 years to file a lawsuit (although it can be extended to 3 years if they file a verified petition within 1 year). Additionally, if the injured person is a minor (such as in the case of a birth injury case), the limitation period will be extended until 1 year after they turn 18.
Q: Is there any other basis for personal injury besides negligence?
Most personal injury cases are based on the legal theory of negligence. Under this legal theory, a person is liable if they fail to meet the appropriate standard of care. For example, drivers are required to exercise reasonable care to avoid harming others on the road. If a driver fails to exercise reasonable care (by, for example, running a red light), they will be held liable for any damages that result.
Although negligence is the most common legal theory in personal injury cases, it’s not the only legal theory.
A personal injury lawsuit in South Carolina may also be based on:
- An intentional wrong. If someone intentionally harms you, that intentional act may be the basis for a personal injury lawsuit. The most common example of a personal injury lawsuit based on an intentional wrong is a lawsuit involving battery.
- Strict liability. Some acts are considered so inherently dangerous that the defendant can be held liable for an injury without the plaintiff having to prove that the defendant acted negligently or intentionally. In these situations, the plaintiff only needs to prove that the defendant committed the act in question.
Q: Do I need an attorney?
There is no legal requirement that you retain an attorney. Most plaintiffs in small claims court don’t have an attorney. On the other hand, most plaintiffs in all other courts are represented.
Whether or not you need an attorney is a personal decision. With that being said, it’s generally a good idea to hire an attorney if any of the following are true:
- You suffered a serious physical or mental injuries
- You think there may be future damages
- The defendant is represented by an attorney
Keep in mind that most initial consultations are free. So you can meet with an attorney to discuss your case and help decide whether you need an attorney without incurring any costs (other than your time).
Q: How do I choose a personal injury attorney?
Personal injury lawsuits can last for years. As a result, it’s important to hire an attorney who is competent but also one who you can get along with.
Ask your family members, friends, and colleagues for recommendations. If you're active in a social organization, you might also consider asking the other members.
If no one in your social circle can recommend a lawyer, you’ll need to turn to online directories. There was a time when every lawyer was listed in the yellow pages. For the most part, those days are long gone. Today, online legal directories have replaced the yellow pages. You can find one free online directory right here on Enjuris!
Q: How much does a personal injury attorney cost?
Most (but not all) lawyers charge a contingent fee in South Carolina civil cases. A contingent fee is an arrangement where the lawyer’s fee is based on a percentage of the recovery. If there’s no recovery, the client doesn’t owe an attorney fee (though there may be charges for certain expenses, such as filing fees and court reporter fees).
If no specific agreement is made between the attorney and client, the law assumes that the attorney is entitled to a “reasonable fee.” The court will consider the following factors when determining what’s reasonable:
- The fee is normally charged in the area for similar services
- The time and labor required
- The novelty and difficulty of the case
- Whether or not the case prevented the attorney from taking other cases
- The amount involved and the results obtained
- The time limit imposed by the client or by the circumstances
- The nature and length of the relationship between the attorney and client
- The experience and reputation of the attorney
- Whether the fee is fixed or contingent
If you can’t afford an attorney, the Legal Aid Services organization nearest you may provide free legal services if you meet certain income-based requirements.
Q: What type of damages can I recover in a South Carolina personal injury case?
Plaintiffs in South Carolina personal injury cases can recover the following types of damages:
- Economic damages represent the monetary losses associated with your injury (medical expenses, lost wages, etc.).
- Non-economic damages represent the non-monetary losses associated with your injury (pain and suffering, emotional distress, loss of enjoyment of life).
- Punitive damages are intended to punish the defendant and deter future similar conduct. Punitive damages are only available in cases where the defendant’s conduct was willful, wanton, or reckless.
Q: Are there any damage caps in South Carolina?
Unfortunately for plaintiffs, most states have damage caps that limit the amount of damages they can recover in a personal injury case.
In South Carolina, the following types of damage caps apply:
- When suing the local, state, or federal government, damages are capped at $300,000 per person (or $600,00 total if there’s more than 1 defendant)
- In medical malpractice cases, non-economic damages are capped at $350,000 per defendant (or $1.05 million total if there’s more than 1 defendant)
- Punitive damages are capped at $500,000, or 3 times the actual damages (whichever is greater)
Q: What if I’m partially responsible for the accident?
Many plaintiffs wrongly assume that if they are partially at fault for the accident, they can’t recover any damages.
South Carolina follows the modified comparative fault rule. Under this rule, the amount of damages a plaintiff can recover is reduced by their percentage of fault. However, if the plaintiff is 51% or more at fault, the plaintiff is barred from recovering any damages.