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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Amy Ferrell Moriarty, Respondent,

v.

Garden Sanctuary

Church of God, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From York County

John C. Hayes, III, Circuit Court Judge

Opinion No. 25156

Heard May 9, 2000 - Filed June 26, 2000

AFFIRMED

David B. Betts of Columbia and Frank A. Hirsch, Jr.

of Charlotte, N.C., for petitioner.

Gregg E. Meyers of Charleston for respondent.

JUSTICE WALLER: This case presents the novel issues of

whether a cause of action based on repressed memory syndrome is viable in

South Carolina, and whether an adult who alleges she repressed memories of

childhood sexual abuse may bring a timely cause of action under the "discovery

p.294

rule" contained in S.C. Code Ann. § 15-3-535 (Supp. 1999) after recovering the

memories.

Amy Ferrell Moriarty sued Garden Sanctuary Church of God (the

Church) to recover damages for sexual abuse she allegedly suffered as a young

child at a day care center operated by the Church. The circuit court granted the

Church's motion for summary judgment, ruling the action was time-barred

pursuant to S.C. Code Ann. § 15-3-40 (1976) and Doe v. R.D., 308 S.C. 139, 417

S.E.2d 541 (1992). The Court of Appeals reversed. Moriarty v. Garden Sanctuary

Church of God, 334 S.C. 150, 511 S.E.2d 699 (Ct. App. 1999). We

granted the Church's petition for a writ of certiorari to review that decision and

now affirm.

FACTS

We will briefly outline the facts, which are set forth more fully in

the Court of Appeals' opinion. Moriarty was born August 26, 1971. She

attended the Church's Kiddie Kollege Day Care Center from August 1973, when

she was two years old, until May 1976, when she was about 41/z years old.

During that period, Moriarty became stubborn and unhappy. She experienced

night terrors and grew apprehensive about attending day care. A pediatrician,

who was unaware of anything unusual happening at the day care center, told

Moriarty's mother not to worry about it.

Moriarty continued to have emotional problems and teachers told

her mother that Moriarty did not work up to her potential. She received mental

health counseling during her school years. In 1992, Moriarty sought mental

health counseling again after she began obsessively counting numbers in her

head. She became depressed, missed her nursing classes, slept excessively, and

began taking Prozac.

After studying masturbation in her nursing classes, she became

obsessed it was abnormal. Her studies and counseling apparently triggered her

recovery of the repressed memories. She began to see pictures in her mind of

a little girl's hand masturbating a male and in late November 1992, she

recognized the hand as her own. Moriarty remembered wearing a particular

yellow dress during an episode of abuse, and an old family film not viewed in

years showed her wearing that dress. Moriarty recalled particular physical

characteristics of the abuser: crooked teeth, bushy eyebrows, and frizzy hair.

p.295

She visited each of the locations where she had attended day care and had a

"strong reaction" to Kiddie Kollege. Upon review of a series of photographs, she

had a "strong reaction" to a picture of one individual who had bushy eyebrows

and frizzy hair. Moriarty recalled her abuser used a particular name to refer

to his penis. She further remembered her abuser warning her that if she told

about the abuse she would be "overtaken by the devil." Moriarty alleged the

abuser removed her from supervised rest periods to perform the abusive acts.

The complaint that Moriarty, then twenty-six years old, filed in

November 1995 alleged causes of action for negligent infliction of severe

emotional distress, invasion of privacy, negligent supervision, and breach of

warranty. Moriarty contended she had sued the Church within three years of

recovering specific memories of the alleged abuse in late 1992 and 1993, and her

lawsuit was timely under the discovery rule contained in S.C. Code Ann. § 15-3

535 (Supp. 1999). 1

The Church argued the action accrued, if at all, not later than May

1976. Therefore, Moriarty's action was time-barred because she failed to

commence it within one year of her twenty-first birthday or not later than

August 26, 1993. See S.C. Code Ann. § 15-3-40 (1976). 2 The Church further

argued the statute of limitations was not tolled under section 15-3-535.

The Court of Appeals rejected the Church's position and reversed

the grant of summary judgment to the Church.

We affirm without extensive discussion the Court of Appeals'

Except as to actions initiated under Section 15-3-545, all actions

initiated under Section 15-3-530(5) must be commenced within

three years after the person knew or by the exercise of reasonable

diligence should have known that he had a cause of action.

2 The reduction in the age of majority from twenty-one to eighteen took

effect July 2, 1976, about two months after Moriarty stopped attending the

Church's day care center. Act No. 695, 1976 Acts 1886. Therefore, her case

would fall under the twenty-one-year provision.

p.296

holding that repressed memories of sexual abuse can exist and a plaintiff may

attempt to recover damages when those memories are triggered and

remembered. The condition is known as dissociative amnesia. A cause of action

based on such a theory is valid in South Carolina for the reasons set forth by

the Court of Appeals. Moriarty, 334 S.C. at 156-62, 511 S.E.2d at 702-05.

We will address in more detail the Court of Appeals' holdings

regarding the use of the discovery rule contained in S.C. Code Ann. § 15-3-535.

ISSUES

1. Did the Court of Appeals err in holding that a

plaintiff may assert the "discovery rule"

contained in S.C. Code Ann. § 15-3-535 in a case

involving repressed memory of sexual abuse?

2. Did the Court of Appeals err in holding that a

repressed memory plaintiff must provide

corroborating evidence of injury as a prerequisite

to application of the discovery rule?

3. If corroborating evidence is a prerequisite to

application of the discovery rule, did the Court of

Appeals err by permitting circumstantial

evidence to satisfy that prerequisite?

4. If corroborating evidence is a prerequisite to

application of the discovery rule, may application

of the rule and the existence of corroborating

evidence remain questions of fact for the jury?

STANDARD OF REVIEW

A trial court may properly grant a motion for summary judgment

when "the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as

a matter of law." Rule 56(c), SCRCP. Summary judgment is not appropriate

when further inquiry into the facts of the case is desirable to clarify the

p.297

application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d

187 (1997). Summary judgment should not be granted even when there is no

dispute as to evidentiary facts if there is dispute as to the conclusion to be

drawn from those facts. Id. In determining whether any triable issues of fact

exist, the court must view the evidence and all reasonable inferences that may

be drawn from the evidence in the light most favorable to the non-moving party.

Manning v. Quinn, 294 S.C. 383, 365 S.E.2d 24 (1988). An appellate court

reviews the granting of summary judgment under the same standard applied

by the trial court pursuant to Rule 56, SCRCP. Wells v. City of Lynchburg, 331

S.C. 296, 501 S.E.2d 746 (Ct. App. 1998).

We are free to decide questions of law - in this case whether South

Carolina recognizes a certain cause of action and whether the discovery rule

may apply when that cause of action is asserted - with no particular deference

to the lower court. See S.C. Const. art. V, §§ 5 and 9; S.C. Code Ann. §§ 14-3-

320 and -330 (1976 & Supp. 1999); S.C. Code Ann. § 14-8-200 (Supp. 1999)

(granting Supreme Court and Court of Appeals the jurisdiction to correct errors

of law in both law and equity actions); I'On v. Town of Mt. Pleasant, Op. No.

25048 (S.C. Sup. Ct. filed Jan. 17, 2000) (Shearouse Adv. Sh. No. 2 at 1).

DISCUSSION

1. APPLICATION OF DISCOVERY RULE

The Church contends the Court of Appeals erred in holding that the

"discovery rule may toll the statute of limitations during the period a victim

psychologically represses her memory of sexual abuse." Moriarty, 334 S.C. at

168, 511 S.E.2d at 709 (emphasis in original). 3 We disagree.

that statute as "tolling" the statute of limitations. The cases typically state that

the statute of limitations "begins to run" on the date the plaintiff either knew

or should have known through the exercise of reasonable diligence that she had

a cause of action. See, e.g., Roe v: Doe, 28 F.3d 404 (4th Cir. 1994); True v.

Monteith, 327 S.C. 116, 489 S.E.2d 615 (1997); Wiggins v. Edwards, 314 S.C.

126, 442 S.E.2d 169 (1994); Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301,

278 S.E.2d 333 (1981); Dorman v. Campbell, 331 S.C. 179, 500 S.E.2d 786 (Ct.

(3 continued...)

p.298

A plaintiff must bring a personal injury action within three years

after the plaintiff knew or by the exercise of reasonable diligence should have

known that she had a cause of action. S.C. Code Ann. § 15-3-530(5) and -535

(Supp. 1999). "The exercise of reasonable diligence means simply that an

injured party must act with some promptness where the facts and

circumstances of an 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. The statute of limitations begins to run from

App. 1998); Brown v. Pearson, 326 S.C. 409, 483 S.E.2d 477 (Ct. App. 1997); see

also Mills v. Killian, 273 S.C. 66, 254 S.E.2d 556 (1979) (concluding "the accrual

upon discovery rule represents the more equitable and rational view" in a case

that arose prior to the enactment of section 15-3-535). Section 15-3-535 does

not contain any express "tolling" provisions, unlike S.C. Code Ann. § 15-3-40,

which we have described as a "tolling statute." See Wiggins, supra (using

"begins to run" language when discussing section 15-3-535 and "tolling"

language when discussing section 15-3-40).

Moriarty could have brought her lawsuit under two other statutes of

limitation if she had done so in a timely manner: the six-year limit of S.C. Code

Ann. § 15-3-530(5) that was in effect in 1976 and the age of majority statute

contained in section 15-3-40. The time periods established in those statutes had

expired by the time Moriarty brought her lawsuit in 1995; therefore, one could

argue there was no statute of limitations to "toll," i.e., "to suspend or stop

temporarily." See Black's Law Dictionary 1488 (1990). On the other hand, one

could conclude, as the Court of Appeals apparently did, that the initial six-year

limit or age of majority statute was tolled by Moriarty's repression of the

memories.

Distinctions about whether another statute of limitations is "tolled" by

section 15-3-535 or whether a cause of action accrues upon discovery, thus

causing the limitations period to begin to run under section 15-3-535, appear

largely academic. Cf. Hearndon v. Graham, 710 So.2d 87, 90-92 (Fla. Ct. App.

1998). The ultimate question remains the same: May a plaintiff assert section

15-3-535 in a repressed memory case in order to maintain a timely cause of

action? However, for consistency's sake, we adhere to our analysis in previous

cases and avoid use of "tolling" language in discussing section 15-3-535.

p.299

this point and not when advice of counsel is sought or a full-blown theory of

recovery developed." Wiggins v. Edwards, 314 S.C. 126, 128, 442 S.E.2d 169,

170 (1994) (quoting Snell v. Columbia Gun Exchange Inc., 276 S.C. 301, 278

S.E.2d 333 (1981)).

"The important date under the discovery rule is the date that a

plaintiff discovers the injury, not the date of the discovery of the identity of [the]

wrongdoer." Wiggins, supra. However, under section 15-3-535, "the statute of

limitations is triggered not merely by knowledge of an injury but by knowledge

of facts, diligently acquired, sufficient to put an injured person on notice of the

existence of a cause of action against another." True v. Monteith, 327 S.C. 116,

118, 489 S.E.2d 615, 617 (1997).

Initially, we agree with the Church and the Court of Appeals that

the circuit court's reliance on Doe v. R.D., 308 S.C. 139, 417 S.E.2d 541(1992)

was misplaced. In Doe, the plaintiff was fully aware that he had been sexually

abused by his father from age six to sixteen. He filed a lawsuit against his

parents more than twenty years after the abuse ended and long past the age of

majority. The plaintiff argued the discovery rule should apply or the majority

statute of limitations should be tolled until he discovered the extent of his

injuries through a diagnosis of delayed stress syndrome.

We rejected those arguments, concluding only the Legislature may

create such an exception to the statutes of limitation. We noted, however, that

the plaintiff had not alleged he only recently discovered he was sexually abused

by his father, suggesting that might lead to different result. Id. at 141, 417

S.E.2d at 542.

We find Doe distinguishable because it was not a repressed memory

case. Moriarty, unlike the plaintiff in Doe, did not realize she had been injured

by sexual abuse until her studies and counseling allegedly caused her to recover

the repressed memories. It is not necessary to create any exception to the

statute of limitations in Moriarty's case. It is necessary only to apply the

discovery rule's requirement of reasonable diligence, as this Court and others

have done in various cases. See, e.g., Hinson v. Owens-Illinois Inc., 677 F.

Supp. 406 (D.S.C. 1987) (asbestos case); True, supra (legal malpractice action

by client); Ropers v. Efird's Exterminating Co., 284 S.C. 377, 325 S.E.2d 541

(1985) (action by homeowner against termite extermination company); Brown

v. Pearson, 326 S.C. 409, 483 S.E.2d 477 (Ct. App. 1997) (sexual harassment

p.300

action by church members against pastor).

Similarly, we conclude the view expressed in Roe v. Doe, 28 F.3d

404 (4th Cir. 1994) is neither dispositive nor at odds with application of the

discovery rule in this case. In Roe, the plaintiff discovered her injury by

gradually recovering memories of sexual abuse that she had repressed since the

age of four or five. The Fourth Circuit Court of Appeals, applying the discovery

rule in an objective fashion, concluded the plaintiff sufficiently had regained her

memory to discover the injury no later than May 4,1989. Thus the lawsuit she

filed May 5, 1992, did not comply with the three-year limit contained in S.C.

Code Ann. § 15-3-535.

Roe stands for the proposition that a repressed memory plaintiff -

like plaintiffs seeking to use the discovery rule in other cases - must bring her

action within the required period after the date a reasonable person would have

regained sufficient memories to discover her injury. Unlike the plaintiff in Roe,

Moriarty filed her complaint within three years after allegedly discovering her

injury by remembering she had been abused at the Church's day care center.

Many states have applied the discovery rule by judicial decision or

by statute in childhood abuse cases in which memories allegedly were

repressed. See Doe v. Roe, 955 P.2d 951, 960 (Ariz. 1998) (listing cases);

Dalrymple v. Brown, 701 A.2d 164, 170 n.9 (Pa. 1997) (listing cases); S.V. v.

R.V., 933 S.W.2d 1, 20-22 (Tex. 1996) (listing cases and statutes); Moriarty, 334

S.C. 164-65, 511 S.E.2d at 707 (listing cases and statutes); Gregory G. Sarno,

Annotation, Emotional or Psychological "Blocking" or Repression as Tolling

Running of Statute of Limitations, 11 A.L.R. 5th 588 (1993); Annotation,

Posttraumatic Syndrome as Tolling Running of Statute of Limitations, 12

A.L.R.5th 546 (1993); Michael Krauss, Fundamental Fairness in Child Sexual

Abuse Cases, 8 Stan. L. & Pol'y Rev., 205 (1997). 4

of limitations containing a discovery rule for civil actions stemming from

childhood sexual abuse. H. 3927, 110th Leg., lst Sess. (S.C. 1993). The bill

would have required a plaintiff to bring an action for sexual abuse or incest

within ten years of becoming eighteen or "within four years from the time of

discovery by the person of the injury and the causal relationship between the

(4 continued...)

p.301

The Church contends the discovery rule should not apply because

repression is just another way of describing the normal process of forgetting,

and cites courts that have refused to apply the rule in repressed memory cases.

The Church relies on Doe v. Maskell, 679 A.2d 1087 (Md. 1996), in which the

Maryland Court of Appeals held that a court-created discovery rule did not

apply in a repressed memory case involving high school students sexually

abused by a school chaplain. The Maryland court explained that adversaries

of the concept believe no empirical evidence of repression exists, the

psychological community disagrees on the subject, and recovered memories can

be manipulated by therapists. The court concluded that repressing a memory

and forgetting it are indistinguishable scientifically and legally, and observed

the legislature could address the matter if it wished. Id. at 1091-92.

In our view, equating a repressed memory to merely "forgetting"

ignores advances in the understanding of the human mind. True, it is not a

precise science and many matters cannot be determined, for example, with the

certainty of an engineering problem or mathematical equation in a products

liability lawsuit. But the same can be said about many cases involving a "battle

of experts," which is why courts and legislatures have developed rules of

evidence and principles regarding the admissibility of scientific and technical

testimony. See State v. Council, 335 S.C. 1, 19-21, 515 S.E.2d 508, 517-18

(1999) (declining to adopt Daubert 5 analysis and explaining procedure trial

judge must use under South Carolina Rules of Evidence in deciding whether to

admit scientific evidence); Rules 702-705, SCRE; see also Kumho Tire Co., Ltd.

v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding

that a federal trial judge's gatekeeping obligation under the Federal Rules of

Evidence - to ensure that an expert witness' testimony rests on a reliable

foundation and is relevant to the task at hand - applies not only to testimony

based on scientific knowledge, but also to all expert testimony, including

technical and other specialized knowledge).

injury and the sexual abuse or incest, whichever occurs later." The bill would

not have required any corroborating evidence. The bill passed the House, but

died in the Senate Judiciary Committee.

5 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

2786, 125 L.Ed.2d 469 (1993).

p.302

The Church contends that applying the discovery rule would defeat

the purpose of limitations statutes in this setting. Even a reasonable three- or

four-year-old would recognize such conduct as a battery and so should have only

until the age of majority plus one year to file an action, the Church argues. The

Church cites Lindabury v. Lindabury, 552 So.2d 1117 (Fla. Ct. App. 1989)

(incestuous acts damaged child when they occurred and action filed long after

reaching age of majority was time-barred) and Tyson v. Tyson, 727 P.2d 226

(Wash. 1986) (sharply divided court rejected application of the discovery rule in

a case of repressed memories of sexual abuse).

We reject the Church's argument. Instead, we find the views

expressed by the dissenters in Lindabury and Tyson, who would have applied

the discovery rule, more persuasive. The Lindabury dissenter explained that

repression appeared in the literature by the late 1800s and, even though it is

one of the many "gray areas" in the field of psychiatry, courts should not

mechanically apply the statute of limitations in such cases. Id. at 1118-21. A

more recent Florida Court of Appeals from another district criticized Lindabury,

explaining that the majority of courts have applied the discovery rule in

repressed memory cases. Hearndon v. Graham, 710 So.2d 87 (Fla. Ct. App.

1998). The Washington legislature nullified Tyson by enacting a discovery rule

in such cases, and the Tyson majority opinion has not been followed by most

courts. See Wash. Rev. Code § 4.16.340 (1999).

Our Court of Appeals and the numerous commentators it cites

explain that young children may sense something wrong has occurred when

they are molested. But they are neither mentally nor emotionally prepared to

deal with it and so may repress the memory for years. Although there is no

clear consensus among the psychological, medical, or legal communities about

repressed memory syndrome, we do not believe the law should expect a 41/2

year-old child to recognize an "offensive touching," such that the child should

always be bound by the majority statute of limitations.

We reject the Church's argument that the Court of Appeals

established a discovery rule that will be applied in a subjective fashion. That

court flatly stated that "[a]pplication of the discovery rule is an objective

determination . . . [and] [t]he focus is upon the date of discovery of the injury,

not the date of discovery of the wrongdoer." Moriarty, 334 S.C. at 163, 511

S.E.2d at 706 (citing Wiggins, supra). The discovery rule will apply in

Moriarty's case if she can prove to the jury that a person of common knowledge

p.303

and experience would not have been put on notice that she had a claim against

the Church until late 1992 and 1993. She will have to establish the fact of her

repressed memories by expert testimony because the matter lies outside the

expertise of the lay person. Id. at 171-73, 511 S.E.2d at 710-11.

The rule under the Court of Appeals' opinion is not whether

Moriarty herself was on notice by a certain date (a subjective standard), but

whether a reasonable person in her circumstances would have been on notice

by a certain date (an objective standard). The statute begins to run on the date

that the jury believed the repression ended and the resurfacing memories would

have put a reasonable person on sufficient notice.

In sum, the discovery rule exists to avoid the harsh and unjust

result of closing the courtroom doors to a plaintiff whose "blameless ignorance"

resulted in a failure to pursue a cause of action within the limitations period.

See Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282,

1292 (1949). The limitations period is intended to run against those who are

neglectful of their rights and who fail to exercise reasonable diligence in

enforcing their rights. However, it is not the policy of the law to unjustly

deprive an injured person of a remedy. See Wiggins, supra; True, supra.

An analogy offered by another court applying the discovery rule in

a case similar to Moriarty's is enlightening:

The present case might profitably be compared with a

hypothetical one. Suppose that the defendant threw

acid in a plaintiff s face and blinded her. As a result of

her blindness, which was caused by the defendant, the

plaintiff has become disabled from making an

identification, and no other evidence is available.

Twenty-five years later, however, a new procedure

restores the plaintiffs 20:20 eyesight. She identifies

the defendant as her assailant from a photograph

taken of the defendant on the day of the assault. To

apply the statute of limitations against the plaintiff in

such a case to defeat recovery would surely be

intolerable, for to do so would permit the assailant to

profit from his own wrong.

p.304

Farris v. Compton, 652 A.2d 49, 59 (D.C. 1994).

Accordingly, we affirm the Court of Appeals and hold that a plaintiff

may assert the discovery rule contained in S.C. Code Ann. § 15-3-535 in a case

involving repressed memories of sexual abuse.

2. CORROBORATING EVIDENCE

The Court of Appeals, recognizing the "horrific possibility of false

accusations," held that a plaintiff must present independently verifiable,

objective evidence that corroborates a repressed memory claim in order to assert

the discovery rule contained in S.C. Code Ann. § 15-3-535. That court further

held that expert testimony is required to prove both the abuse and the

repressed memory. Moriarty, 334 S.C. at 168-73, 511 S.E.2d at 709-11. The

Church urges the Court to embrace the requirement of corroborating evidence.

Courts that have not required corroborating evidence reason that

a repressed memory case is no different than any other "swearing contest" or

"battle of experts." A plaintiff in a repressed memory case will bear a

substantial burden of proving a case at trial under the controversial theory, and

it is not necessary for the court to impose a higher burden in applying the

discovery rule or on the merits. See McCollum v. D'Arcy, 638 A.2d 797, 799

(N.H. 1994) (rejecting requirement of corroborating evidence because it is not

required in other discovery rule cases and legislature may impose it if it

wishes); Logerquist v. Danforth, 932 P.2d 281 (Ariz. Ct. App. 1996) (stating

most courts in applying discovery rule in repressed memory case have not

required corroboration; plaintiff must still prove her case and application of

discovery rule and whether abuse occurred are questions of fact for jury);

Phillips v. Johnson, 599 N.E.2d 4, 7 (Ill: App. Ct. 1992) (concluding trial court

improperly considered the reliability of plaintiffs anticipated evidence in

dismissing repressed memory complaint because plaintiff had offered no

"verifiable" evidence; psychological evidence is generally admissible, assuming

that relevancy and foundational requirements are met, and determination of

credibility and weight are matters for jury).

We recognize that we never have required corroborating evidence

in applying the discovery rule in any other setting. We also recognize that of

at least twenty-four states adopting statutes since the late 1980s expressly

allowing use of the discovery rule in actions by adult survivors of child abuse,

p.305

only two have imposed any special requirements. See Cal. Civ. Proc. Code §

340.1 (Supp. 2000) (requiring attorney to file "certificate of merit" that he has

consulted with at least one licensed mental health practitioner who believes the

claim has merit; certificate must be approved by court before a complaint may

be served on defendant); Okla. Stat. Ann. tit. 12, § 95(6) (1999) (requiring

plaintiff to present objective verifiable evidence, which should include both

proof that victim had psychologically repressed memory of the facts upon which

the claim was predicated and corroborating evidence that sexual abuse actually

occurred); see also S.V., 933 SW.2d at 21-22 (suggesting that second generation

of discovery rule statutes in child sexual abuse cases is likely to require

corroborating evidence).

Nevertheless, we agree with the Court of Appeals that requiring

corroborating evidence appropriately balances the plaintiffs interest in

pursuing a valid claim and the defendant's interest in being able to defend a

stale or false claim. The primary reasons other courts have imposed the

requirement are the disagreement among the psychological and medical

communities about the validity of repressed memory syndrome, the danger a

plaintiff s memories could be faked or implanted during therapy, and the desire

that a plaintiff not have the ability to control the running of the statute of

limitations solely by allegations whose only support is contained within the

plaintiff's mind. See Roe v. Doe, 28 F.3d at 408-09 (suggesting that

corroborative evidence of abuse and repressed memory should be required)

(Hall, J., concurring); Olsen v. Hooley, 865 P.2d 1345, 1349-50 (Utah 1993)

(requiring corroborating evidence because of concerns about the reliability of

memory in general and revived memories in particular, and the difficulty of

defending against claims of revived memories of sexual abuse long past); S.V.,

933 S.W. 2d at 7-15 (discovery rule applies in repressed memory case only when

claim is "inherently undiscoverable" and "objectively verifiable" through

corroborating evidence; court assumed plaintiffs injury was inherently

undiscoverable, but rejected application of discovery rule because she offered no

corroborating evidence).

We find the reasoning of these courts persuasive. Accordingly, we

affirm the Court of Appeals and hold that a plaintiff must present

independently verifiable, objective evidence that corroborates a repressed

memory claim in order to assert the discovery rule contained in S.C. Code Ann.

§ 15-3-535. We further hold that expert testimony is required to prove both the

abuse and the repressed memory.

p.306

3. USE OF CIRCUMSTANTIAL EVIDENCE TO CORROBORATE CLAIM

The Court of Appeals held that the element of "objective

verifiability" may be satisfied by corroborating evidence such as (1) an

admission by the abuser; (2) a criminal conviction; (3) documented medical

history of childhood sexual abuse; (4) contemporaneous records or written

statements of the abuser, such as diaries or letters; (5) photographs or

recordings of the abuse; (6) an objective eyewitness's account; (7) evidence the

abuser had sexually abused others; or (8) proof of a chain of facts and

circumstances having sufficient probative force to produce a reasonable and

probable conclusion that sexual abuse occurred. Moriarty, 334 S.C. at 171, 511

S.E.2d at 710.

The Church urges the Court to strike the eighth category, arguing

its inclusion effectively nullifies the requirement of corroborating evidence. We

disagree.

"Direct evidence is the testimony of a person who asserts or claims

to have actual knowledge of a fact, such as an eyewitness. Circumstantial

evidence is proof of a chain of facts and circumstances indicating the existence

of a fact." State v. Needs, 333 S.C. 134,156 n.13, 508 S.E.2d 857, 86 n.13 (1998)

(language drawn from jury instruction in criminal case). "The law makes

absolutely no distinction between the weight or value to be given to either direct

or circumstantial evidence." Id.

This Court has not distinguished between the two types of evidence

in numerous cases. See, e.g., Tiller v. Nat'l Health Care Center of Sumter, 334

S.C. 333, 341, 513 S.E.2d 843, 846 (1999) (proof that workers' compensation

claimant sustained an injury may be established by circumstantial or direct

evidence); Holtzscheiter v. Thomson Newspapers Inc., 332 S.C. 502, 513, 506

S.E.2d 497, 503 (1998) (directed verdict on liability in civil case is properly

denied when there is any evidence, direct or circumstantial, justifying

submission of issue to jury); State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69

(1998) (in considering directed verdict motion in criminal case at trial and on

appeal, evidence must be viewed in light most favorable to State, and court

must find that the case was properly submitted to the jury when there is any

direct evidence or any substantial circumstantial evidence reasonably tending

to prove defendant's guilt); Waters v. South Carolina Land Resources

Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996) (fact that

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geologist relied on circumstantial rather than direct evidence in forming his

conclusions goes to the weight of the evidence, and may be relied on by

administrative agency and court to support a finding of fact); Anders v. Anders,

285 S.C. 512, 515, 331 S.E.2d 340, 342 (1985) (either circumstantial or direct

evidence, or a combination of the two, may be sufficient to prove adultery as

grounds for a divorce); Mahaffey v. Ahl, 264 S.C. 241, 247, 214 S.E.2d 119, 122

(1975) (it is axiomatic in this State that issues of negligence and proximate

cause may be resolved by direct or circumstantial evidence); First Union Nat'l

Bank of South Carolina v. Soden, 333 S.C. 554, 575, 511 S.E.2d 372, 383 (Ct.

App. 1998) (tort of civil conspiracy may be shown by circumstantial as well as

direct evidence); Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 642,

321 S.E.2d 63, 68 (Ct. App. 1984) (circumstantial evidence and inferences

drawn therefrom may be relied on to support a finding of fact of an

administrative agency). 6

We find no reason to draw a distinction between the use of direct or

circumstantial evidence in a repressed memory case. The other examples of

corroborating evidence identified above may consist of direct or circumstantial

evidence. The focus in this setting is not on whether the corroborating evidence

is direct or circumstantial. The focus is on whether the evidence is "objectively

verifiable," such that it corroborates the plaintiffs recovered memories.

Accordingly, we affirm the Court of Appeals and hold that corroborating

evidence may consist of the various examples, including proof of a chain of facts

and circumstances having sufficient probative force to produce a reasonable and

probable conclusion that sexual abuse occurred.

charge in criminal cases that states a jury may not convict a defendant "unless

every circumstance relied upon by the State be proven beyond a reasonable

doubt; and all of the circumstances so proven be consistent with each other

and taken together, point conclusively to the guilt of the accused to the

exclusion of every other reasonable hypothesis." Needs, 333 S.C. at 156 n.13,

508 S.E.2d at 868 n.13. This charge indicates circumstantial evidence requires

greater scrutiny than direct evidence in a criminal proceeding. Regardless, we

conclude that circumstantial and direct evidence may be equally valid and

convincing in this civil action.

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4. QUESTIONS OF FACT FOR JURY

Given our holding that corroborating evidence is a prerequisite to

application of the discovery rule in a repressed memory case, the final issue is

whether application of the discovery rule and the existence of corroborating

evidence may remain questions of fact for the jury. The answer is "yes."

Application of the discovery rule contained in S.C. Code Ann. § 15-3

535, as well as the determination of the date the statute began to run in a

particular case, are questions of fact for the jury when the parties present

conflicting evidence. See Arant v. Kressler, 327 S.C. 225, 229, 489 S.E.2d 206,

208 (1997) (when testimony conflicts regarding time of discovery of a cause of

action, it becomes an issue for the jury to decide); Johnston v. Bowen, 313 S. C.

61, 64, 437 S.E.2d 45, 47 (1993) (whether a claimant knew or should have

known that they had a cause of action is question for the jury); Santee Portland

Cement Co. v. Daniel Int'1 Corp, 299 S.C. 269, 274, 384 S.E.2d 693, 696 (1989)

(application of discovery rule to a claim is a question of fact for jury), overruled

on other grounds by Atlas Food Sys. and Servs., Inc. v. Crane Nat'l Vendors Div.

of Unidynamics Corp., 319 S.C. 556, 462 S.E.2d 858 (1995); Brown v. Finger,

240 S.C. 102, 113, 124 S.E.2d 781, 786 (1962) (when testimony is conflicting

upon the statute of limitations, it becomes an issue for jury to decide); Maher

v. Tietex Corp., 331 S.C. 371, 377, 500 S.E.2d 204, 207 (Ct. App. 1998) (in

determining whether statute of limitations begins to run under discovery rule,

jury must resolve conflicting evidence as to whether a claimant knew or should

have known he had a cause of action).

In this case, following the Church's motion for a judgment as a

matter of law based on the statute of limitations, Moriarty must demonstrate

the existence of a genuine issue of material fact regarding the application of the

discovery rule. She also must present corroborating evidence supporting her

claim of alleged abuse. The court must consider the evidence and all inferences

that may be drawn from it in the light most favorable to Moriarty, the non

moving party. See Rule 56, SCRCP; Manning v. Quinn, 294 S.C. 383, 365

S.E.2d 24 (1988).

If the motion is denied, Moriarty still bears the burden of proving

at trial that she repressed memories of the abuse and that corroborating

evidence supports her claim. If the jury finds for the plaintiff on those issues,

the jury must determine when the plaintiff recalled the abuse, such that a

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person of common knowledge and experience would be on notice that some right

of hers has been invaded or that some claim against another party might exist.

It is on that date the statute of limitations begins to run. See Moriarty, 334

S.C. at 169, 511 S.E.2d at 709 (citing Olsen, 865 P.2d at 1349-50). Application

of the discovery rule at summary judgment and at trial is an objective

determination. Arant, 327 S.C. at 229, 489 S.E.2d at 208; Kreutner v. David,

320 S.C. 283, 285, 465 S.E.2d 88, 90 (1995); Wiggins v. Edwards, 314 S.C. 126,

128-29, 442 S.E.2d 169, 170 (1994).

CONCLUSION

We hold that a plaintiff may bring a cause of action based on

repressed memory syndrome to recover damages for sexual abuse she allegedly

suffered as a child. A repressed memory plaintiff may assert the discovery rule

contained in S.C. Code Ann. § 15-3-535 (Supp. 1999). However, the plaintiff

must present - both at the summary judgment stage and at trial - objectively

verifiable evidence to corroborate a repressed memory claim in order to use the

discovery rule. Such corroborating evidence may consist of direct or

circumstantial evidence. The plaintiff must use expert testimony to establish

the abuse and the fact of the repressed memories. The application of the

discovery rule, as well as the existence of corroborating evidence, are questions

of fact for the jury to determine when the parties present conflicting evidence.

We express no opinion on the merits of Moriarty's claim or on the

validity of repressed memory syndrome as it may apply in her case. We reverse

the grant of summary judgment to Church and remand this case for further

proceedings consistent with this opinion.

AFFIRMED.

TOAL, C.J., BURNETT, PLEICONES, JJ., and Acting Justice

L. Henry McKellar, concur.

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