Dean v. Ruscon Corp.

• Decision Date: 04 October 1995
• Docket Number: No. 24394,24394
• Citation: 468 S.E.2d 645,321 S.C. 360
• Court: South Carolina Supreme Court
• Parties: Susan H. DEAN, Respondent, v. RUSCON CORPORATION, Petitioner. . Heard

Page 645

468 S.E.2d 645

321 S.C. 360

Susan H. DEAN, Respondent, v. RUSCON CORPORATION, Petitioner.

No. 24394.

Supreme Court of South Carolina.

Heard Oct. 4, 1995.

Decided March 25, 1996.

Rehearing Denied April 18, 1996.

Claron A. Robertson, III and Michael S. Seekings, both of Robertson & Seekings, Charleston, for Petitioner.

A. Camden Lewis, William R. Calhoun, Jr. and Pete Kulmala, all of Lewis, Babcock & Hawkins, Columbia, for Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

BURNETT, Justice:

We granted certiorari to review the Court of Appeals' opinion in Dean v. Ruscon Corporation, Op. No. 94-UP-188 (Ct.App. filed July 19, 1994). We reverse.

FACTS

In September 1984, Respondent Susan H. Dean (Dean) purchased a building located at 216 King Street in Charleston after a contractor had inspected it and determined it to be structurally sound. At the time of purchase, Dean did not notice any cracks in the masonry or facade of the building. During October and November of 1984, Petitioner Ruscon Corporation (Ruscon) performed pile driving activities at a nearby construction site for the Omni Hotel. Early in November 1984, Dean observed a fine crack approximately three feet in length at the front right corner of the building and concluded that the crack was attributable to Ruscon's pile driving.

Dean immediately hired a contractor and structural engineer to inspect the building. They recommended that she place a strain gauge on the crack and monitor it daily. Dean understood that unless there was a change in the gauge or crack, the damage could be corrected by placing right angle steel bracing on both corners of the building. Based upon her understanding that the crack posed no structural problems, she began renovations to the building in the amount of $194,553.09.

During the summer of 1985, Ruscon resumed pile driving activities adjacent to the block where Dean's building was located. In August 1985, Dean noticed that the original crack had expanded and the facade of the building was bulging and buckling at the In April 1991, Dean filed this lawsuit. At trial, Dean's expert opined that the damage to Dean's building was "most reasonably caused by the pile driving activity" which Ruscon performed in 1984, rather than the pile driving performed in 1985. Moreover, Dean testified that from her observations she believed the damage to her building resulted from the 1984 pile driving activities.

location of the original crack. Another crack also appeared on the opposite side of the building. Dean closed her business which was located in the building after being informed that the building was no longer structurally sound.

The circuit court directed a verdict in favor of Ruscon concluding that Dean discovered potential damage to her building in 1984 and associated it with Ruscon's pile driving activities. Therefore, as a matter of law Dean's lawsuit accrued in November 1984. Because she filed her lawsuit in April 1991, the circuit court determined that Dean was barred by the six year statute of limitations. The Court of Appeals reversed.

ISSUE

Does a jury question exist as to whether Dean's case is barred by the statute of limitations?

DISCUSSION

The Court of Appeals concluded that a question of fact existed as to whether Dean was reasonably diligent in determining whether the damage to her building was attributable to Ruscon thereby triggering the running of the statute of limitations in 1984. Accordingly, it reversed the circuit court's direction of verdict. We disagree.

A cause of action for trespass upon or damage to real property which arises or accrues prior to April 5, 1988, must be commenced within six years. S.C.Code Ann. § 15-3-530(3) (1976). The discovery rule is applicable to actions brought under § 15-3-530(3). See Santee Portland Cement Co. v. Daniel Int'l Corp., 299 S.C. 269, 384 S.E.2d 693 (1989) (citing Campus Sweater and Sportswear Co. v. M.B. Kahn Constr. Co., 515 F.Supp. 64 (D.S.C.1979), aff'd, 644 F.2d 877 (4th Cir.1981)). According to the discovery rule, the statute of limitations begins to run when a cause of action reasonably ought to have been discovered. The statute runs from the date the injured party either knows or should have known by the exercise of reasonable diligence that a cause of action arises from the wrongful conduct. Johnston v. Bowen, 313 S.C. 61, 437 S.E.2d 45 (1993). We have interpreted the "exercise of reasonable diligence" to mean that the injured party must act with some promptness where the facts and circumstances of an injury place a reasonable person of common knowledge and experience on notice that a claim against another party might exist. Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 278 S.E.2d 333 (1981). Moreover, the fact that the injured party may not comprehend the full extent of the damage is immaterial. Dillon County School Dist. No. Two v. Lewis Sheet Metal Works, Inc., 286 S.C. 207, 332 S.E.2d 555 (Ct.App.1985), cert. granted, 287 S.C. 234, 337 S.E.2d 697 (1985), cert. dismissed, 288 S.C. 468, 343 S.E.2d 613 (1986).

Dean contends that the crack which appeared in 1984 and the bulging of the bricks in 1985 present two distinct harms and, therefore, our holdings in Benton v. Roger C. Peace Hosp. ¹ and Santee Portland Cement, supra, are controlling. In Benton, a Downes Syndrome patient fell from his wheelchair and suffered facial lacerations which were readily apparent and discoverable. Later, a second more insidious injury arose from neurological damage which could have been caused by the fall or something else. Because the nature of the neurological injury was not discoverable by the appearance of facial lacerations, we held these injuries to be two separate, distinct, and severable harms. Thus, we held that the statute of limitations began to run at different times for each injury.

In this case, the evidence establishes that in 1984 Dean's consultants advised her that the damage resulting from pile driving could be corrected by steel braces if the crack did not change. The experts also advised her to monitor the crack, and if it did in fact expand, corrective measures would need to be reevaluated to ensure the building's continued structural integrity. Dean admitted that she personally believed the damage to her building resulted from the pile driving activities of 1984, and that when she first noticed the crack, she thought the structure of the building was compromised. ...