Personal Injury and Personal Injury Lawsuits

The Joe Griffith Law Firm serves victims of accidents, including automobile, aviation, boating / maritime, construction, motorcycle, tractor trailers, and train and railroad accidents; birth injury; burn injury; medical malpractice; nursing home negligence; premises liability; prescription drug negligence; product defects; spinal cord injury; traumatic brain injury; worker's compensation and wrongful death.

A personal injury, which generally involves a physical and/or emotional injury to the victim and/or damage to the victim’s property, usually results from one or more of the following:

• A party’s negligent, careless or reckless conduct
• A defective product
• An ultra-hazardous activity or condition
• A party’s intentionally wrongful conduct

A personal injury victim’s right to recover compensation for injuries sustained is primarily governed by state common law, state statutory law and federal statutory law. The personal injury victim is commonly referenced as a “plaintiff” and the person or entity that caused the harm is commonly referenced as a “defendant.”

Personal Injury from Negligence

To recover for a personal injury negligence claim in this state, the South Carolina Supreme Court has set forth the elements which must be proved by the plaintiff as follows:

• A duty of care is owed to the plaintiff by the defendant
• The defendant breached his duty of care
• The defendant’s breach of the duty of care caused the plaintiff injuries
• The plaintiff’s injuries resulting from defendant’s breach of the duty of care were reasonably foreseeable by the defendant and therefore the proximate or legal cause of the injuries

Adrade v. Johnson , 356 S.C. 238, 245, 588 S.E.2d 588, 592 (2003).

Negligence is the failure to use due care or reasonable care, which is that care which a reasonably careful person would use under like circumstances. Proctor v. Department of Health and Environmental Control, 2006 WL 706734 (S.C.App.)

For instance, take a hypothetical defendant who is driving an automobile, runs a red light, crashes into the plaintiff (who is abiding by all traffic laws), and causes the plaintiff to injure her head and back as a result of the accident. The defendant owed the plaintiff a duty of care to drive safely and in compliance with all traffic regulations and laws. By running the red light and crashing into the plaintiff, the plaintiff breached his duty of care to the plaintiff and caused her injuries. It would have been reasonably foreseeable that the defendant’s failure to stop at the traffic light, as required by law, and the resulting crash and injuries were proximately or legally caused by the defendant.

The plaintiff in a personal injury negligence suit must prove the elements of his or her claim by a preponderance of the evidence or the greater weight of the evidence. In percentage terms, the plaintiff must prove his claim by more that 50%. In South Carolina, there is a common law concept known as “contributory negligence,” which is when the plaintiff’s own negligence contributes to or causes, in whole or in part, the plaintiff’s injury. Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). When a plaintiff’s contributory negligence occurs, the common law concept of comparative negligence becomes applicable to the case. If a plaintiff’s contributory negligence is greater than the defendant’s negligence, then the plaintiff is awarded no recovery. If the plaintiff’s negligence is equal to or less than the defendant’s negligence, then the plaintiff’s recovery is reduced by the percentage of the plaintiff’s negligence. For instance, if a jury were to find $10,000,000 in total damages to the plaintiff, and further found the defendant’s negligence to equal 80% and the plaintiff’s negligence to equal 20%, then the plaintiff’s total recovery would be $8,000,000.

Personal Injury from a Defective Product

A personal injury lawsuit can also arise from defective or unsafe products. South Carolina passed the Defective Product Act (“DPA”), S.C. Code 15-73-10 to -30, in 1974. The purpose of the DPA is to protect consumers from unreasonably dangerous defective products by eliminating the injured plaintiff’s need to prove negligence, making the standard of due care irrelevant, and making the defendant strictly liable for defective products which cause injuries.

Section 15-73-10 provides as follows:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, if

(a) The seller is engaged in the business of selling such a product, and
(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in subsection (1) shall apply although

(a) The seller has exercised all possible care in the preparation and sale of his product, and
(b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.

Section 15-73-20 provides as follows:

If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.

Section 15-73-30 provides as follows

Comments to - 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.

While the South Carolina DPA is short, it packs a big wallop. It provides that manufacturers, wholesalers, and retailers of products may be held strictly liable for damages arising from the use of defective products. Almost all consumer products are covered by the DPA. An injured user does not need to be the original purchaser of the defective product and generally does not need to prove negligence. The DPA provides strict liability which means that if the product is defective and that defect caused an injury, the injured user may sue for damages as long as the product was used as it was meant to be used and not substantially changed from its original condition.

If an injured plaintiff was using the product in a manner not intended by the manufacturer or retailer, or had altered the product so that safety features were disabled, the plaintiff’s defective product claim may be defeated.

A product liability case may also be brought pursuant to causes of action based in negligence and breach of warranty. A manufacturer of a defective product may be shown to have been negligent in adequately testing its product or in supplying directions for its use. The negligence generally must have occurred before the product left the manufacturer’s control. Likewise, a product manufacturer makes an implied warranty for fitness of use and freedom from defect when a product is sold, and if the item proves to be defective or is unfit for the purpose intended, a breach of warranty action may be maintained.

If a claim of strict liability is to be pursued under the DPA, the plaintiff will need to show that the product was unreasonably dangerous for its intended use, due to a defect. In defective product cases, there are various areas of defects that can occur. The three general areas in which a product can be unreasonably dangerous are:

• Manufacturing defects
• Design defects
• Warning defects

Warning defects can occur when the manufacturer or seller fails to warn about the dangers associated with a product’s use. Manufacturers and sellers must provide adequate warnings about possible dangers of the product, and to provide clear and adequate instructions for the use thereof. A manufacturing defect usually arises during the manufacturing or assembly process wherein the product fails to meet the company’s specifications. On the other hand, a design defect usually causes a product to be unreasonably dangerous even though it is manufactured to the company’s specifications. The reasonableness of a defective product’s design is usually a question for the jury. Fleming v. Borden, Inc., 316 S.C. 452, 524 S.E.2d 589 (1994).

In all defective product personal injury cases, it is essential that the product be preserved and that all paperwork showing the origin of the product be retained. Receipts showing the date and place of purchase, repair records, and other similar documents are essential to having a successful defective product case.

Personal Injury from an Ultra-Hazardous Activity

A personal injury case can also arise from an ultra-hazardous activity, such as blasting dynamite. If a plaintiff proves an injury from an ultra-hazardous activity, then the defendant will be held strictly liable for the damages. Generally, an ultra-hazardous activity is one that involves a substantial risk of serious harm to a person or property no matter how much reasonable care is exercised. Wallace v. A.H. Guion & Co., 237 S.C. 349, 117 S.E.2d 359 (1960). Other types of potentially ultra-hazardous activities include crop dusting, and the use, storage or disposal of hazardous materials or potent pesticides.

Personal Injury from an Intentional Tort

A personal injury case can also arise from an intentional tort, such as an assault and battery. Again, there is no due care requirement, and a defendant will be subject to strict liability if a plaintiff proves the intentional tort. A plaintiff need only show that the defendant intentionally acted against the plaintiff, which ultimately caused the plaintiff damages. A plaintiff may recover compensation from an intentional tort, even if there are no physical injuries to him, which are sometimes called nominal damages.

Compensation for a Personal Injury

In a personal injury lawsuit, a victim seeks compensation for the injury or injuries he or she has suffered. Compensation can include past and future medical expenses, disability or deformity, loss of income, emotional and mental anguish, loss of a spouse’s comfort and society, past and future pain and suffering, and an amount which would be necessary to make the person whole as respects a permanent personal injury. McNeil v. United States, 519 F.Supp. 283 (D.S.C. 1981). In cases where the defendant acted recklessly, maliciously or willfully, punitive damages may also be awarded. Punitive damages in personal injury lawsuits are intended to punish the responsible party and deter others from committing the same acts. Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991). If a wrongful death results from the personal injury, the decedent’s beneficiaries are entitled to compensation. See JGLF's Wrongful Death Overview.

Causes of Personal Injury

Time Limits for Bringing Suit

There are time limits on bringing a personal injury lawsuit in the state of South Carolina known as statutes of limitations. See S.C. Code 15-3-530(5); 15-3-535. While a personal injury suit is generally subject to a three year statute of limitations, there may be exceptions depending on the circumstances, such as a medical malpractice case where the negligent conduct may be covered by a concept known as the “discovery rule.” See S.C. Code � 15-3-545. The statutes of limitations are different for negligence suits against a South Carolina state government agency pursuant to the South Carolina Tort Claims Act (“TCA”) and the federal government pursuant to the Federal Tort Claims Act (“FTCA”). Under the TCA, a suit must generally be filed within two years, unless a verified claim is filed within a year of the injury, then the statute of limitations is three years. S.C. Code 15-78-110. Under the FTCA, an administrative tort claim must generally be presented to the subject federal agency within two years. Once a timely administrative tort claim has been filed, there is no statute of limitations on bringing a suit unless the federal agency denies the claim, in which case a suit must be brought in federal court within six months after the denial. 28 U.S.C. 1346(b), 1402, 2401, 2675.

If You or a Loved One Suffers a Personal Injury

1. Seek appropriate medical treatment immediately.
2. Contact the Joe Griffith Law Firm, LLC as soon as you can and retain JGLF as your legal counsel. It is important to have an investigator visit the scene of any accident as soon as possible.
3. Take, or have taken, photographs or videos of any accident scene and physical injuries incurred. Photographs and videos of the scene of an automobile accident can make the difference in winning and losing your case.
4. Write down all of the pertinent facts of any accident and personal injury as soon as you are able to do so and particularly while the facts are fresh in your mind. Witness names, addresses and telephone numbers, car licenses, insurance policies, police officer names, addresses and telephone numbers should be recorded if possible.
5. Do not give any written, recorded or verbal statements to anyone concerning your accident or injuries without first getting our approval, except with respect to police in the event of an accident. Do not discuss the case with anyone other than your law firm and your doctors. If an insurance adjuster contacts you, direct her questions to your law firm.
6. Save and itemize all of your medical expenses and lost wages, and save all wheel chairs, casts, braces, crutches, x-rays, pill bottles, and any other items from your doctors.
7. Do not make any false statements to any treating doctor or health care provider who may treat or examine you respecting any prior injuries or accidents.
8. Keep your law firm immediately informed of any change in your address, telephone number, employment and medical treatment.
9. Keep your doctor appointments, follow your doctor’s orders, instructions and advice, and fully disclose to your doctor all of your pain and injuries you received from your accident.
10. Do not sign any legal documents unless approved by your law firm.

For more information, please see JGLF's Personal Injury FAQs.

If you have additional questions, please contact the Joe Griffith Law Firm to discuss your case.

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