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Hedgepath v. American Telephone and Telegraph Company12/10/2001
t. App. 2001), cert. denied. In Dean, the Supreme Court stated:
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. 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. Moreover, the fact that the injured party may not comprehend the full extent of the damage is immaterial. Id. at 363, 364, 468 S.E.2d at 647 (emphasis in original) (citations omitted); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct. App. 1999) (stating the statute of limitations 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).
The date on which discovery of the cause of action should have been made is an objective, rather than a subjective, question. Joubert v. South Carolina Dep't of Soc. Servs., 341 S.C. 176, 534 S.E.2d 1 (Ct. App. 2000); see also Young, 333 S.C. at 719, 511 S.E.2d at 416 ("In other words, whether the particular plaintiff actually knew he had a claim is not the test. Rather, courts must decide whether the circumstances of the case would put a person of common knowledge and experience on notice that some right of his has been invaded, or that some claim against another party might exist.").
Reasonable diligence is intrinsically tied to the issue of notice. The Joubert Court explicated: "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." Id. at 191, 534 S.E.2d at 8 (quoting Dean v. Ruscon Corp., 321 S.C. 360, 364, 468 S.E.2d 645, 647 (1996)); see also Wiggins v. Edwards, 314 S.C. 126, 442 S.E.2d 169 (1994) (stating the exercise of reasonable diligence means simply that the injured party must act with some promptness where facts and circumstances of injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist; statute of limitations begins to run from this point and not when advice of counsel is sought or full-blown theory of recovery is developed) (citation omitted).
Continuing Trespass or Nuisance
The Banyard plaintiffs contend the trial court erred in granting summary judgment to Nassau and Gaston Copper because the court did not recognize that their claims involved ongoing misconduct and contamination. They also argue their damages are both abatable and permanent.
In order to attack the statute of limitations defense, the plaintiffs seek to bring their property damage claims within the rubric of a continuing trespass or nuisance. Under South Carolina law, the distinction between trespass and nuisance is that "trespass is any intentional invasion of the plaintiff's interest in the exclusive possession of his property, whereas nuisance is a substantial and unreasonable interference with the plaintiff's use and enjoyment of his property." Silvester v. Spring Valley Country Club, 344 S.C. 280, 286, 543 S.E.2d 563, 566 (Ct. App. 2001), cert. denied (citing Ravan v. Greenville County, 315 S.
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