Updated 2012

STATE OF SOUTH DAKOTA COMPENDIUM OF LAW

Prepared by Robert C. Riter

Margo D. Northrup Riter, Rogers, Wattier & Northrup, LLP

Professional & Executive Building 319 S. Coteau Street

Pierre, SD 57501 (605) 224-5825

www.riterlaw.com

1

PRE-SUIT AND INITIAL CONSIDERATIONS

Pre-Suit Notice Requirements/Prerequisites to Suit

A) Public entities. The pre-suit notice requirement for actions against a public entity or

public official is governed by S.D. CODIFIED LAWS § 3-21-2 (2011). In order to maintain

an action for the recovery of damages for “personal injury, property damage, error, or

omission or death caused by a public entity or its employees,” written notice of the “time,

place, and cause of the injury” must be given to the public entity within one hundred and

eighty (180) days of the injury.

Relationship to the Federal Rules of Civil Procedure

South Dakota has its own Code of Civil Procedure, found in Title 15 of the South Dakota

Codified Laws (2011). It has included portions from certain Federal rules.

Description of the Organization of the State Court System

A) Structure.

1) Supreme Court. South Dakota has five Supreme Court districts and five Justices

serving on the Court. One Justice is selected from each district and the term of

office is eight (8) years. S.D. CODIFIED LAWS § 16-1-2 (2011).

2) Circuit Courts. The Court of general jurisdiction in South Dakota is the Circuit

Court. There are seven (7) different circuits. S.D. CONST. art V, § 7.

B) Judicial selection.

1) Supreme Court. The date of the election of justices, is the general election,

being held on the first Tuesday after the first Monday in November of each even

numbered year. S.D. CODIFIED LAWS § 12-2-2 (2011).

a) Retention. After the initial election, the Justice is subject to approval or

rejection by the electorate on an eight year basis by way of a retention

election. S.D. CODIFIED LAWS § 16-1-2 (2011).

b) Selection of chief justice. The Chief Justice is selected among the

justices by a majority vote of the justices. S.D. CODIFIED LAWS § 16-1-2.1

(2011).

2) Circuit courts. The date of the election of Circuit Court Judges, is the general

election, being held on the first Tuesday after the first Monday in November of

each even numbered year. S.D. CODIFIED LAWS § 12-2-2 (2011). A map of South

Dakota reflecting trial court Judicial Circuits is incorporated with this

Compendium.

2

a) Term. The Circuit Court judges serve for a term of eight years. S.D.

CONST. art. V, § 7.

b) Retention. After the initial election, a Circuit Court Judge is subject to

approval or rejection by the electorate in her Circuit on an eight year basis

by way of a retention election. S.D. CODIFIED LAWS § 16-1-2 (2011).

3) Vacancies. Vacancies in either the Supreme Court or Circuit Court during the

existing term shall be filled by appointment by the Governor from one of two or

more persons nominated by the Judicial Qualifications Commissions. S.D. CONST.

art. V, § 7.

C) Alternative dispute resolution.

1) Mandatory mediation. South Dakota has no mandatory mediation requirements

other than as to claims for payment of debts, totaling fifty thousand dollars

($50,000.00) or greater, against agricultural land or agricultural property or to

foreclose a contract to sell agricultural land or property or to enforce a security

interest in any land or property or pursue other remedies relating to agricultural

land or property. See S.D. CODIFIED LAWS § 54-13-10 (2011).

2) Arbitration. South Dakota does authorize enforcement of arbitration agreements.

S.D. CODIFIED LAWS § 21-25A-1 et seq. (2011). However, that Chapter “does not

apply to insurance policies and any provision in a policy requiring arbitration or

restricting a party from enforcing any right under it by usual legal proceedings is

void and unenforceable.” S.D. CODIFIED LAWS § 21-25A-3. In all other

questions, the Court will look at the arbitration agreement. The issue whether the

agreement is a valid contract to arbitrate is a question of law. Azcon Constr. v.

Golden Hills, 498 N.W.2d 630 (S.D. 1993).

Service of Summons

A) Person. Service of Summons upon a person is governed by S.D. CODIFIED LAWS § 15-6-

4(d)(8) (2011). Service on a person includes: (1) personal service; and (2) substituted

service, which is leaving a copy of summons at defendant’s dwelling in the presence of a

member of his family over the age of fourteen, or if defendant resides in the family of

another, with a member of such age of the family with which he resides.

B) Public corporations. Service of Summons upon a public corporation is governed by

S.D. CODIFIED LAWS § 15-6-4(d)(2) (2011). Service may be made as follows:

(i) Upon a county, by serving upon any county commissioner;

(ii) Upon a first or second class municipality, by serving upon the mayor or any

alderman or commissioner;

3

(iii) Upon a third class municipality, by serving upon any trustee;

(iv) Upon an organized township, by serving upon any supervisor;

(v) Upon any school district, by serving upon any member of the school board or

board of education; and

(vi) Upon a consumers power district, by serving upon any member of the board of

directors.

C) Businesses. Service of summons upon a business entity, which includes (1) domestic

and foreign corporations, (2) domestic and foreign partnerships, (3) limited liability

companies, (4) entities with fictitious names, and (5) any entity required to have a

registered agent with the Secretary of State, is governed by S.D. CODIFIED LAWS § 15-6-

4(d)(1) (2011). Service upon any of these entities may be made by serving the

president, partner or other head of the entity, officer, director, or registered agent thereof.

If any of the above cannot be conveniently found, service may be made by leaving a copy

of the summons and complaint at any office of such business entity within this state, with

the person in charge of such office.

D) Other means. S.D. CODIFIED LAWS § 15-6-4(d) (2011) also states service of summons is

proper:

1) Minors. If action is against a minor, upon a parent or person having custody, and

if minor is over age of fourteen, upon minor personally. Id. at § 15-6-4(d)(3).

2) Mentally incompetent. If action is against person judicially declared mentally

incompetent, upon guardian or conservator or custodian. Id. at § 15-6-4(d)(4).

3) State. If action is against state, or any of its institutions, departments, or

agencies, by service upon such officer or employee as may be designated by

statute authorizing action, and upon attorney general. Id. at § 15-6-4(d)(5).

4) State officers. If action is against a state officer, employee, or agent arising out

of his office, employment or agency, copy of summons and complaint shall be

mailed, with an admission of service, to attorney general. Id. at § 15-6-4(d)(6).

5) Foreign countries. Under S.D. CODIFIED LAWS § 15-6-4(d)(9), if an action is

against a person or business entity in a foreign country, service may be made as

follows:

a) By an internationally agreed means reasonably calculated to give notice;

b) If there is no internationally agreed means,

1. In the manner prescribed by law of the foreign country for service in that

country in action before its courts of general jurisdiction;

4

2. As directed by foreign authority in response to letter rogatory or letter

request, or;

3. Unless prohibited by foreign country, personal delivery; upon a

corporation, limited liability company, limited partnership or partnership

or association, by delivery to an officer, or a managing, general or

registered agent; or by any form of mail requiring a signed receipt; or

4. As directed by the court.

E) Nonresident motorists. Service upon a nonresident motorist involved in an accident in

South Dakota can be effected by serving the Secretary of State. S.D. CODIFIED LAWS §

15-7-6, 7 (2011).

F) Insurance companies. Service upon an insurance company can be completed by serving

the Director of the South Dakota Division of Insurance since each insurer engaging in

business in South Dakota must appoint the Director as attorney to receive service of legal

process issued against it in South Dakota. S.D. CODIFIED LAWS § 58-6-39 (2011).

Statutes of Limitations

A) Contracts. The statute of limitations for actions based upon oral or written contract is

governed by S.D. CODIFIED LAWS § 15-2-13 (2011). The cause of action must be

commenced within six (6) years of accrual.

B) Sales contracts. S.D. CODIFIED LAWS § 57A-2-725 (2011) sets forth the statute of

limitations on contracts for sale. The statute states:

(1) An action for breach of any contract for sale must be commenced within four years

after the cause of action has accrued.

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's

lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is

made, except that where a warranty explicitly extends to future performance of the goods

and discovery of the breach must await the time of such performance the cause of action

accrues when the breach is or should have been discovered.

(3) Where an action commenced within the time limited by subsection (1) is so

terminated as to leave available a remedy by another action for the same breach such

other action may be commenced after the expiration of the time limited and within six

months after the termination of the first action unless the termination resulted from

voluntary discontinuance or from dismissal for failure or neglect to prosecute.

C) Warranty claims. The four-year period on a breach of warranty claim against a

manufacturer commences to run when delivery occurs and can apply rather than the six-

year statute applicable to an action upon a contract. City of Lennox v. Mitek Indus., Inc.,

519 N.W.2d 330 (S.D. 1994); see also Sherman v. Sherman, 2000 SD 117, 616 N.W.2d

393.

D) Contribution. South Dakota has not directly ruled on the issue of when the applicable

statute of limitations commences to run on contribution claims.

5

E) Indemnification. The statute of limitations for indemnification does not begin to run

until liability attaches to the indemnitee. Sheehan v. Morris Irrigation, Inc., 460 N.W.2d

415, 416 (S.D. 1990).

F) Employment. The statute of limitations for employment actions is governed by S.D.

CODIFIED LAWS § 15-2-15 (2011). The following actions must be commenced within

two years: “An action for wages regulated by either state or federal statute or for a

penalty or liquidated damages for failure to pay wages regulated by such statute; [or] an

action for wages or for a liability or penalty for failure to pay wages.”

G) Fraud. According to S.D. CODIFIED LAWS § 15-2-3 (2011), in an action for fraud, a

cause of action shall not be deemed to have accrued until the aggrieved party discovers

facts constituting fraud.

H) Government entities. The statute of limitations for actions against government entities

is governed by S.D. CODIFIED LAWS § 3-21-2 (2011). The statute states:

No action for the recovery of damages for personal injury, property damage, error, or

omission or death caused by a public entity or its employees may be maintained against

the public entity or its employees unless written notice of the time, place, and cause of the

injury is given to the public entity . . . within one hundred and eighty days after the

injury.

1) Contract claims. An action on any contract claim or tort against the State of

South Dakota is required to be commenced within one year after it has arisen.

S.D. CODIFIED LAWS § 21-32-2 (2011).

I) Personal injury. An action for personal injury must be commenced within three years

after the cause of action shall have accrued. S.D. CODIFIED LAWS § 15-2-14(3) (2011).

1) Libel, slander, assault, battery, false imprisonment. An action for libel,

slander, assault, battery, or false imprisonment must be commenced within two

(2) years. S.D. CODIFIED LAWS § 15-2-15 (2011).

J) Professional liability. The statute of limitations for professional liability is as follows:

1) Medical malpractice. Medical malpractice actions must be commenced within

two (2) years of alleged malpractice. S.D. CODIFIED LAWS § 15-2-14.1 (2011).

2) Legal malpractice. Legal malpractice actions must be commenced within three

(3) years of alleged malpractice. S.D. CODIFIED LAWS § 15-2-14.2 (2011).

3) Licensed public accountant. Actions against licensed public accountants must

be commenced within three years of alleged malpractice unless the Department of

Revenue or Internal Revenue Service conducts an audit in which case must be

commenced within four (4) years. S.D. CODIFIED LAWS § 15-2-14.4 (2011).

6

4) Veterinarians. Actions against veterinarians must be commenced within three

(3) years of alleged malpractice. S.D. CODIFIED LAWS § 15-2-14.5 (2011).

5) Real estate licensees, agents, & employees. Suits against real estate licensees,

agents, and employees must be commenced within three (3) years of alleged

malpractice. S.D. CODIFIED LAWS § 15-2-14.6 (2011).

6) Bank directors, shareholders, agents or employees. Actions against bank

directors, shareholders, agents or employees must be commenced within three (3)

years of alleged malpractice. S.D. CODIFIED LAWS § 15-2-19 (2011).

K) Property damage. The statute of limitations for actions regarding property damage is as

follows:

1) Trespass. An action for trespass upon real property must be commenced within

three (3) years. S.D. CODIFIED LAWS § 15-2-13(3) (2011).

2) Recovery of personal property. “An action for taking, detaining, or injuring any

good or chattels, including actions for specific recovery of personal property,”

must be commenced within three (3) years. S.D. CODIFIED LAWS § 15-2-13(4)

(2011).

L) Survival.

1) Relationship to wrongful death. A survival claim can be pursued in conjunction

with a wrongful death claim. S.D. CODIFIED LAWS § 21-5-2 (2011). See also

Yellow Horse v. Pennington Cnty., 225 F.3d 923 (8th Cir. 2000).

2) Personal representatives. Personal representatives have powers to pursue claims

for a decedent. See S.D. CODIFIED LAWS § 29A-3-1 (2011).

3) Substitution of parties. If the death of a plaintiff or defendant occurs and the

right sought to be enforced survives the action, it does not abate unless, after

suggestion of death is made on the record, substitution of parties is not made

within ninety days. S.D. CODIFIED LAWS § 15-6-25(a) (2011).

4) Dissolved corporation. A two-year period exists for bringing claims against a

dissolved corporation. S.D. CODIFIED LAWS § 47-26-39 (2011); see also M.S. v.

Dinkytown Day Care Ctr., Inc., 485 N.W.2d 587 (1992).

M) Tolling.

1) Defendant absent from state. South Dakota law provides, with some

limitations, that if

any person is out of the state when an action accrues, such action may be

commenced within the terms herein respectively limited after the return of such

7

person into this state; and if after such cause of action shall have accrued, such

person shall depart from and reside out of the state, the time of his absence shall

not be deemed or taken as any part of the time limited for the commencement of

such action.

S.D. CODIFIED LAWS § 15-2-20 (2011).

a) Foreign corporations. Foreign corporations registered in South Dakota,

with a registered agent in the state for service of process, are not absent

from the state so as to toll the statute of limitations. S.D. CODIFIED LAWS

§ 15-2-20.

2) Disability. S.D. CODIFIED LAWS § 15-2-22 (2011) states:

If a person entitled to bring an action other than for the recovery of real

property, except for a penalty or forfeiture, or against a sheriff or other officer

for an escape, was at the time the cause of action accrued, either:

(1) Within the age of minority as defined in chapter 26-1; or

(2) Mentally ill;

the time of the person's disability is not a part of the time limited for the

commencement of the action.

The period within which the action shall be brought cannot be extended more

than five years by any disability except infancy, nor can it be extended in any

case longer than one year after the disability ceases.

The provisions of this section do not apply to actions for the foreclosure of any

real estate mortgage, either by action or by advertisement.

3) Continuing treatment. “Continuing treatment,” as required to toll medical

malpractice statute of limitations, must consist of treatment by same physician or

clinic for same or related medical condition. Liffengren v. Bendt, 2000 SD 91,

612 N.W.2d 629. Also, “continuing treatment” requires more than general,

continuing patient-physician relationship; there must be ongoing treatment of a

medical condition. Id.

4) Continuous representation. The “continuous representation” doctrine applies to

toll legal malpractice statute of limitations, where “professional’s involvement

after alleged malpractice is for performance of same or related services and is not

merely continuity of a general professional relationship.” Williams v. Maulis,

2003 SD 138, 672 N.W.2d 702. Tolling applies only “when there are clear indicia

of an ongoing, continuous, developing, and dependent relationship between the

client and the attorney, which is not sporadic but developing, and involves a

continuity of the professional services from which the alleged malpractice stems.”

Kindle v. Morisset, Schlosser, Ayer & Jozwiak, 217 F.3d 602 (8th Cir. 2000).

8

N) Wrongful death. An action for wrongful death shall be commenced within three years

after death. S.D. CODIFIED LAWS § 21-5-3 (2011); see also S.D. CODIFIED LAWS § 21-5-4

(2011), which states that a foreign statute of limitations in wrongful death actions is

applicable in South Dakota.

Statutes of Repose

A) Government entities. “[N]o statute of limitation or repose may apply against state or

other governmental entity seeking damages from one who failed to warn of known

defects in any product provided to him by the state or any governmental entity.” S.D.

CODIFIED LAWS § 15-2-2 (2011).

B) Medical malpractice. The medical malpractice statute of limitations is a statute of

repose. Peterson ex. rel. Peterson v. Burns, 2001 SD 126, 635 N.W.2d 556.

C) Contracts for sales of goods. Statute of limitations governing breach of contract claims

involving sales of goods is a statute of repose that sets fixed period after running of which

actions are barred. Sheehan v. Morris Irrigation, Inc., 460 N.W.2d 413 (1990).

D) Construction. The statute of limitations for construction actions and for actions based

on improvements to realty is governed by S.D. CODIFIED LAWS § 15-2A-1 (2011). An

action for errors or omissions in planning, design, and construction of improvements to

real estate must be brought within ten (10) years of substantial completion of the project.

If defendant is alleged to be guilty of fraud, fraudulent concealment, fraudulent

misrepresentation, breach of express warranties or guarantees, or willful or wanton

misconduct in the planning, design, and construction of improvements to real estate,

actions may be brought beyond the ten (10) year limitation.

Venue Rules

Venue is governed by S.D. CODIFIED LAWS § 15-5-1 et seq. (2011).

A) Location of subject matter. S.D. CODIFIED LAWS § 15-5-1 (2011) states:

Actions for the following causes must be tried in the county in which the subject of the

action, or some part thereof, is situated, subject to the power of the court to change the

place of trial in the cases provided by the statute:

(1) For the recovery of real property, or of an estate or interest therein, or for the

determination in any form of such right or interest, and for injuries to real property;

(2) For the partition of real property;

(3) For the foreclosure of a mortgage of real property;

(4) For the recovery of personal property distrained for any cause;

(5) For the recovery on a policy of insurance for loss or damage to the property insured,

such property, for the purposes of this subdivision being deemed the subject of the action.

9

B) Where cause of action arose. Under S.D. CODIFIED LAWS § 15-5-2 (2011), actions for

the following causes are tried in the county where the cause arose:

1) For recovery of penalty or forfeiture imposed by statute;

2) Against a public officer, or an act done in virtue of his office;

3) “Upon a forfeited recognizance, bond or undertaking of bail.”

C) Action on insurance policy. S.D. CODIFIED LAWS § 15-5-3 (2011) states:

Actions on life, health, or accident insurance policy issued by a company organized under

South Dakota law are tried in county where insured resided at time alleged liability

occurred.

D) Recovery of damages. Under S.D. CODIFIED LAWS § 15-5-8 (2011):

An action for recovery of damages to person or property may, at the option of the

Plaintiff, be brought and tried in the county where the damages were inflicted or the

cause of action arose.

E) Residence of defendant. S.D. CODIFIED LAWS § 15-5-6 (2011) states:

In all other cases . . . the action shall be tried in the county in which the defendant or

defendants, or any of them, shall reside at the commencement of the action. However, if

none of the defendants reside in the state, the action may be tried in any county which the

plaintiff shall designate in his complaint, subject, however, to the power of the court to

change the place of trial in the cases provided by statute.

F) Waiver of venue. If county designated in complaint is not the proper county, the action

may be tried there unless the defendant, before time for answering set by statute expires,

demands in writing that trial take place in proper county. S.D. CODIFIED LAWS § 15-5-10

(2011).

G) Change of venue. Under S.D. CODIFIED LAWS § 15-5-11 (2011) the court may change

place of trial in following situations:

1) When designated county is not proper;

2) When an impartial trial cannot be had in that county;

3) When convenience of witnesses, and ends of justice would be promoted by

change of venue.

Demand for change of venue must be served and filed within thirty days of service of the

summons. S.D. CODIFIED LAWS § 15-5-10; see also Blair v. Scherle Irrigation, 252

N.W.2d 320 (S.D. 1977).

H) Forum non conveniens. South Dakota recognizes the doctrine of forum non conveniens.

A court has broad discretion in deciding a motion to dismiss based on forum non

conveniens and that decision will be overturned only for abuse of discretion.

Rothluebbers v. Obee, 2003 SD 95, 668 N.W.2d 313. The threshold inquiry on a motion

1

0

to dismiss for forum non conveniens is “whether there is an adequate alternative forum

available in which the dispute can be resolved.” Id. Court assumes plaintiff’s choice of

forum is adequate, but looks at certain public and private interest factors in making its

ultimate decision. Id. The plaintiff’s choice of forum has less impact when plaintiff is a

foreign resident. Id.

NEGLIGENCE

Comparative Fault/Contributory Negligence

Comparative fault and contributory negligence are governed by S.D. CODIFIED LAWS § 20-9-2

(2011). In a negligence action, contributory negligence does not bar recovery when negligence

of plaintiff was slight in comparison with negligence of defendant. If it is more than slight, as

defined, recovery is barred. Also, if the contributory negligence of the plaintiff is less than slight,

plaintiff’s damages will be reduced in proportion to amount of plaintiff’s negligence.

Exclusive Remedy – Worker’s Compensation Protections

A) S.D. CODIFIED LAWS § 62-3-11 (2011) states that any employee whose employer fails to

maintain worker’s comp insurance, or the dependents of such deceased employee, may

elect to proceed against the employer in any action at law to recover damages for

personal injury or death; or

may elect to proceed against the employer in circuit court, as if the employer had

[complied with S.D. Codified Laws § 62-5-7]. The measure of benefits shall be that

provided by S.D. Codified Laws § 62-4-1 plus twice the amount of other compensation

allowed. However, no employee or any dependent of the employee may recover from

both actions.

B) Exclusivity. An employee who has elected to take workmen’s compensation payments

cannot subsequently bring a tort action against an employer. McMaster v. Amoco Foam

Products Co., 735 F. Supp. 941 (D.S.D. 1990).

C) Co-employee doctrine. Under South Dakota law, employer’s immunity also extends to

individual co-employees for injuries occurring because of working conditions that were

employer’s responsibility. Canal Ins. Co. v. Abraham, 1999 SD 90, ¶ 22, 598 N.W.2d

512, 518.

Indemnification

A) Requirements. “A party seeking indemnity must be free of wrong doing.” Sheehan v.

Morris Irrigation, Inc., 460 N.W.2d 413, 417 (S.D. 1990). “[W]here joint tortfeasors are

in pari delicto—that is, where each is chargeable with active or affirmative negligence

contributing to the injury, neither is entitled to indemnity from the other, although

contribution may be available.” Degen v. Bayman, 200 N.W.2d 134 (1972). An act of

omission as well as one of commission on the part of a joint tortfeasor contributing to the

1

1

injury may constitute active negligence precluding his recovery of indemnity where he is

under an affirmative duty to act. Id.

B) Want of ordinary care. S.D. CODIFIED LAWS § 60-2-3 (2011) provides that “[a]n

employer shall in all cases indemnify an employee for losses caused by the employer’s

want of ordinary care.”

C) Construction. S.D. CODIFIED LAWS § 56-3-18 (2011) states:

A covenant, promise, agreement or understanding in, or in connection with or collateral

to, a contract or agreement relative to the construction, alteration, repair or maintenance

of a building, structure, appurtenance and appliance, including moving, demolition and

excavating connected therewith, purporting to indemnify the promisee against liability

for damages arising out of bodily injury to persons or damage to property caused by or

resulting from the sole negligence of the promisee, his agents or employees, or

indemnitee, is against the policy of the law and is void and unenforceable.

Joint and Several Liability

A) Remedies for joint and several liability are governed by S.D. CODIFIED LAWS 15-8-1 et

seq. (2011). Joint tortfeasors are jointly or severally liable in tort for the same injury,

whether or not judgment has been recovered against all or some of them. S.D. CODIFIED

LAWS § 15-8-11.

B) Fault allocation. However, in the case of joint tortfeasors, any party who is allocated

less than fifty percent of the total fault allocated to all parties may not be jointly liable for

more than twice the percentage of fault allocated to that party. S.D. CODIFIED LAWS §

15-8-15.1 (2011).

C) Contribution. Contribution is governed by S.D. CODIFIED LAWS § 20-1-6 (2011).

Contribution allows portion of liability to be shifted, but a party is entitled to contribution

only when there is joint and several liability. Parker v. Stetson-Ross Mach. Co., Inc., 427

F. Supp. 249 (D.S.D. 1977). The mere fact of concurrent negligence or fault does not

give rise to right of contribution. Id. When contribution is allowed, burden of liability is

shared in proportion to degree of fault. Highway Const. Co. v. Moses, 483 F.2d 812

(1973).

Strict Liability

A) South Dakota has adopted the rule of strict liability in tort as expressed in RESTATEMENT

(SECOND) TORTS 402(A). Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909 (S.D.

1987).

B) Standard. “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 thereby

caused to the ultimate user or consumer.” Id. (internal quotations omitted).

1

2

C) Products liability. For products liability, the plaintiff must show: (1) the product was in

a defective condition which made it unreasonably dangerous to the plaintiff, (2) the

defect existed when product left defendant’s control, (3) the product was expected to and

did reach plaintiff without a substantial unforeseeable change in its condition from the

time it left defendant’s control, and (4) the defective condition was the legal cause of the

injuries. See Peterson, 400 N.W.2d 909; First Premier Bank v. KolKraft Enters., 2004

SD 92, 686 N.W.2d 430.

D) Non-manufacturers exception. S.D. CODIFIED LAWS § 20-9-9 (2011) provides that

[n]o cause of action based on strict liability may be asserted against any distributor,

wholesaler, dealer, or retail seller of a product which is alleged to contain or possess a

latent defective condition unreasonably dangerous to the buyer, user, or consumer unless

said distributor, wholesaler, dealer, or retail seller is also the manufacturer or assembler

of said product or the maker of a component part of the final product, or unless said

dealer, wholesaler, or seller knew, or, in the exercise of ordinary care, should have

known, of the defective condition of the final product.

E) Defenses.

1) No contributory negligence defense. Contributory negligence of plaintiff is not

a defense to her strict liability claim. Berg v. Sukup Mfg. Co., 355 N.W.2d 833

(S.D. 1984).

2) Assumption of the risk. Assumption of risk can be an affirmative defense to a

strict liability claim. Id.

3) Misuse. Misuse can be a defense, but the defendant must prove plaintiff’s

conduct constituted a misuse, the misuse was unforeseeable and the misuse

caused the accident. Peterson, 400 N.W.2d 909.

4) State of the art defense. A product’s being “state of the art” is an authorized

defense in a strict liability claim. S.D. CODIFIED LAWS § 20-9-10.1 (2011); see

also Robinson v. Brandtjen & Kluge, Inc., 500 F.3d 691 (8th Cir. 2007).

5) Used products. A plaintiff can recover under strict liability claim against a seller

of a used product only by proving the seller rebuilt or reconditioned the product,

and knew or should have known of the used product’s defective condition. Wynia

v. Richard-Ewing Equip., 17 F.3d 1084 (8th Cir. 1994).

6) Learned intermediary defense. South Dakota has not specifically adopted the

learned intermediary defense. In states where it does exist, the learned

intermediary defense does not require manufacturers to warn consumers about a

product if it is likely that a knowledgeable third party will warn them. It most

commonly applies to the manufacture of drugs and physicians warnings to

patients.

1

3

Willful and Wanton Conduct

In South Dakota, willful misconduct has been defined as “something more than ordinary

negligence but less than deliberate or intentional conduct. Conduct is gross, willful, wanton, or

reckless when a person acts or fails to act, with a conscious realization that injury is a probable,

as distinguished from a possible (ordinary negligence), result of such conduct.” Holscher v.

Valley Queen Cheese Factory, 2006 SD 35, 713 N.W.2d 555 (emphasis in original).

DISCOVERY

Electronic Discovery

There are no specific electronic discovery rules in South Dakota.

Expert Witnesses

In South Dakota, the use of expert witnesses is governed by S.D. CODIFIED LAWS § 19-15-2

(2011). The statute states that “If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or education, may testify thereto in the form

of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data, (2) The

testimony is the product of reliable principles and methods, and (3) The witness has applied the

principles and methods reliably to the facts of the case.

A) if scientific, technical, or other specialized knowledge will assist the trier of fact, a

witness qualified as an expert by knowledge, skill, experience, training, or education,

may testify in the form of opinion or otherwise.” According to S.D. CODIFIED LAWS §

19-15-4, expert testimony is not objectionable merely because it embraces an ultimate

issue to be decided by trier of fact.

B) Forms of disclosure. Expert discovery is generally governed by pretrial order.

Otherwise, statute requires identification of testimonial expert to state the subject matter

on which the expert is expected to testify, and to state the substance of the facts and

opinions to which the expert is expected to testify and a summary of the grounds for each

opinion S.D. CODIFIED LAWS § 15-6-26(b)(4)(A) (2011). The party seeking discovery

must pay the expert a reasonable fee for the time spent in responding to discovery. S.D.

CODIFIED LAWS § 15-6-26(b)(4)(C).

1) Non-testimonial experts. The facts and opinions of non-testimonial experts are

only required upon a showing of exceptional circumstances, other than reports of

physicians in certain cases. S.D. CODIFIED LAWS § 15-6-26(b)(4)(B) (2011); see

also S.D. CODIFIED LAWS § 15-6-35(b) (2011).

C) S.D. CODIFIED LAWS § 15-6-26(b)(4) (2011) states that facts and opinions held by experts

and acquired in anticipation of litigation or for trial, may be obtained only as follows:

1

4

(A)(i) A party may through interrogatories require any other party to identify

each person whom the other party expects to call as an expert witness at trial, to state the

subject matter on which the expert is expected to testify, and to state the substance of the

facts and opinions to which the expert is expected to testify and a summary of the

grounds for each opinion.

(ii) Upon motion, the court may order further discovery by other means, subject

to such restrictions as to scope and such provisions, pursuant to subdivision (4)(C) of this

section, concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has

been retained in anticipation of litigation, or for trial, and who is not expected to be called

as a witness at trial, only as provided in S.D. CODIFIED LAWS § 15-6-35(b) or upon a

showing of exceptional circumstances.

Non-Party Discovery

A) Subpoenas are governed by S.D. CODIFIED LAWS § 15-6-45 (2011).

1) Issuance. In South Dakota, subpoenas may be issued by an attorney. Id. at § 15-

6-45(a).

2) Deposition attendance. A resident can only be required to attend a deposition in

the county where he resides or is employed or transacts business in person. Id. at

§ 15-6-45(d)(ii). Nonresidents served in state can be required to attend a

deposition in the county where that person is served. Id.

3) Fees. A standard fee and a mileage fee must be paid at the time of the service of

the subpoena. Id. at § 15-6-45(c).

B) Time frames for responses. A person served a subpoena may within ten (10) days or,

before the time specified in the subpoena for compliance if such time is less than ten (10)

days, after service file her objection. Id. at § 15-6-45(d)(i).

Privileges

Privileges are governed by Chapter 19-13 of the South Dakota Codified Laws.

A) Attorney-client privilege. Attorney-client privilege is governed by S.D. CODIFIED LAWS

§ 19-13-3 (2011). Four elements must exist to invoke privilege: (1) client, (2) a

confidential communication, (3) communication to render professional legal services to

client, and (4) communication made in one of five statutorily enumerated relationships.

State v. Rickabaugh, 361 N.W.2d 623 (S.D. 1985).

B) Statements and work product. Attorney work product is privileged. Rickabaugh, 361

N.W.2d 623 (statements made to an independent polygraph tester hired by defendant’s

attorney protected); State v. Hofer, 512 N.W.2d 482 (S.D. 1994) (identification of

defendant as former client did not disclose confidential communications and thus was not

1

5

protected); Knecht v. Webter, 640 N.W.2d 491 (2002) (ordinarily, private

communications and work product of attorney are protected).

C) Others for consideration. South Dakota recognizes other privileges as well.

1) Physician-patient privilege. The patient-physician privilege exists in South

Dakota. However, it is waived at trial or during discovery in any proceeding

where the plaintiff’s condition is an element of her claim or defense. S.D.

CODIFIED LAWS § 19-13-11 (2011). The privilege can be claimed by the patient,

his guardian or conservator, or the personal representative of a deceased patient.

S.D. CODIFIED LAWS § 19-13-8 (2011).

2) Interspousal privilege. Communications between spouses are confidential if

made privately and not intended for disclosure to others. S.D. CODIFIED LAWS §

19-13-12 (2011). Communications with a spouse prior to marriage are not

privileged. State v. Dikstaal, 320 N.W.2d 164 (1982).

3) Religious privilege. Confidential communications by a person to a clergyman in

his professional capacity are privileged. S.D. CODIFIED LAWS § 19-13-17 (2011).

4) Trade secrets. A person has a privilege to refuse to disclose, and to prevent

others from disclosing, any trade secret that person owns. S.D. CODIFIED LAWS §

19-13-20 (2011).

5) Public officers. Communications made to a public officer in official confidence

when the public interests would suffer by the disclosure are privileged. S.D.

CODIFIED LAWS § 19-13-21 (2011).

6) Mediation. All verbal or written information transmitted to a mediator during a

mediation proceeding is confidential. S.D. CODIFIED LAWS § 19-13-32 (2011).

D) Waiver of privilege. Privileges are waived if the holder discloses or consents to

disclosure of any significant part of the privileged material, unless the disclosure was

compelled erroneously or made without opportunity to claim the privilege. S.D. CODIFIED

LAWS §§ 19-13-26, -27 (2011).

Requests to Admit

A) Requests to admit are governed by S.D. CODIFIED LAWS § 15-6-36(a) (2011). Under this

rule, a party may serve upon any other party a written request for admission that relates to

statements or opinions of fact or of the application of law to fact.

B) Objections. Each matter of which an admission is requested shall be separately set forth.

The matter is admitted unless, within thirty (30) days after service of request, the party

files a written answer or objection addressed to matter. Id.

1

6

Unique State Issues

A) Telephonic depositions. Telephonic Depositions are authorized by stipulation or prior

order of the court. S.D. CODIFIED LAWS § 15-6-30(b) (2011).

B) Recording of depositions. Unless the court orders otherwise, the deposition can be

recorded by sound, sound-and-visual, or stenographic means. S.D. CODIFIED LAWS § 15-

6-30(b)(4) (2011).

EVIDENCE, PROOFS & TRIAL ISSUES

Accident Reconstruction

The use of an accident reconstruction expert is allowed in South Dakota, provided that he is

qualified, his opinions have factual foundation, and the admission of his testimony is consistent

with evidentiary statutes. See State v. Larson, 1998 SD 80, 582 N.W.2d 15; Buckley v.

Fredericks, 291 N.W.2d 770 (1980). However, the court may exclude expert testimony if the

expert’s opinions are in regard to the ultimate issues of the case, or if they improperly invade the

province of the jury. See Zepp v. Hoffman, 444 N.W.2d 28 (1989).

Appeals

Appeals in South Dakota are governed by Chapter 15-26A of the South Dakota Codified Laws.

A) When permitted. S.D. CODIFIED LAWS § 15-26A-3 (2011) states that appeals to the

Supreme Court may be taken following:

1) A judgment,

2) An order affecting a substantial right, made in any action when such order in

effect determines the action and prevents a judgment from which an appeal

might be taken,

3) An order granting a new trial,

4) Any final order affecting a substantial right, made in special proceedings, or

upon a summary application in an action after judgment,

5) An order which grants, refuses, continues, dissolves, or modifies any of the

remedies of arrest and bail, claim and delivery, injunction, attachment,

garnishment, receivership, or deposit in court,

6) Any other intermediate order made before trial, provided that the ends of justice

will be served thereby, or

7) An order entered on a motion pursuant to S.D. CODIFIED LAWS § 15-6-11.

B) Timing.

1) Limitation. “[A]n appeal from a judgment or order must be taken within thirty

days after the judgment or order shall be signed, attested, filed and written notice

of entry thereof shall have been given to the adverse party.” S.D. CODIFIED LAWS

§ 15-26A-6 (2011).

1

7

2) Extending time. For good cause shown, the Supreme Court may enlarge or

extend the time for doing any act during process of appeal, but may not enlarge

the time for filing notice of appeal. S.D. CODIFIED LAWS § 15-26A-92 (2011).

Biomechanical Testimony

The South Dakota Supreme Court has considered biomechanical testimony on several occasions

but has not specifically confirmed that utilization of it is proper. See Maroney v. Aman, 565

N.W.2d 70, 78-79 (S.D. 1977) (affirming a refusal to allow testimony by an individual

specializing in biomechanical trauma). In Cavendar v. Bodily, Inc., 550 N.W.2d 85, 88 (S.D.

1996), a party sought to present testimony of an engineer with expertise in biomechanical

assessment of accidents. The lower court allowed testimony by an engineer with expertise in

biomechanical assessment of accidents. The Supreme Court reversed the lower court’s decision

to allow that testimony, not because the Supreme Court felt the testimony was inadmissible, but

rather that there were not valid reasons shown for the granting of a motion for leave to present

that testimony as “additional evidence.”

Collateral Source Rule

In South Dakota, the collateral source rule prohibits defendants from reducing their liability

because of payments made to the plaintiff by independent sources. Papke v. Harbert, 2007 SD

87, 738 N.W.2d 510; see also S.D. CODIFIED LAWS § 21-3-12 (2011), which allows evidence of

special damages insurance from certain collateral sources in personal injury actions for health

care malpractice.

Convictions

A) Criminal.

1) Character. S.D. CODIFIED LAWS § 19-12-5 (2011) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show that he acted in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.

2) Balancing. “Although relevant, evidence [such as prior convictions] may be

excluded in South Dakota if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” S.D. CODIFIED LAWS § 19-12-3 (2011).

3) Impeachment. S.D. CODIFIED LAWS § 19-14-12 (2011) states:

For the purpose of attacking the credibility of a witness, evidence that he has

been convicted of a crime shall be admitted but only if the court determines that

the probative value of admitting this evidence outweighs its prejudicial effect,

and the crime:

1

8

(1) was punishable by death or imprisonment in excess of one year, or

(2) involved dishonesty or false statement, regardless of the punishment.

B) Civil actions. “[I]n civil litigation involving an accident that gave rise to a criminal

charge to which the defendant pleaded guilty, the plea, while not conclusive as

substantive evidence, is an admission against interest.” Olson v. Judd, 534 N.W.2d 850

(1995).

Day in the Life Videos

Under South Dakota law, a “Day in the Life Video” would be treated similar to photographs,

charts, and drawings. It would likely be demonstrative evidence rather than evidence admissible

in the case in chief. We find no South Dakota cases that specifically discuss its utilization. S.D.

CODIFIED LAWS § 19-18-1(3) (2011) (referring to a video tape as within the definition of a

photograph). Thus, it is subject to the same evidentiary rules applicable to photographs.

Dead Man’s Statute

S.D. CODIFIED LAWS § 19-16-34 (2011) states:

In actions, suits, or proceedings by or against the representatives of deceased persons

including proceedings for the probate of wills, any statement of the deceased whether oral

or written shall not be excluded as hearsay, provided that the trial judge shall first find as

a fact that the statement was made by decedent, and that it was in good faith and on

decedent's personal knowledge.

“[S]elf-serving testimony alone is insufficient and must be corroborated.” Martinson v. Holso,

424 N.W.2d 664 (S.D. 1988).

Medical Bills

A plaintiff can recover the “reasonable value” of medical services provided. Degan v. Bayman,

241 N.W.2d 703 (S.D. 1976). If the parties cannot stipulate to the bill being reasonable for the

services provided, proof of its reasonableness must be established. Because of the collateral

source rule, the defendant is precluded from entering into evidence any amounts “written off” by

medical care providers because of contractual agreements with sources independent of the

defendant. Papke v. Harbert, 2007 SD 87, 738 N.W.2d 510. Papke also held that the amount

billed does not necessarily constitute the reasonable value for the provided service.

Offers of Judgment

A) Making an offer of judgment. At any time more than ten days before trial begins, any

party may serve upon an adverse party an offer to allow judgment to be taken against the

party for money or property or to the effect specified in the offer, with costs then

accrued.” S.D. CODIFIED LAWS § 15-6-68 (2011). The adverse party has ten (10) days to

accept the offer. Id.

1

9

B) Effect of rejection. S.D. CODIFIED LAWS § 15-6-68 (2011) states:

An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible

except in a proceeding to determine costs. If the judgment finally obtained by the offeree

is not more favorable than the offer, the offeree must pay the costs incurred after making

the offer. The fact that an offer is made but not accepted does not preclude a subsequent

offer.

Offers of Proof

A) Purpose. An error based upon a ruling which admits or excludes evidence is often

waived unless the objecting party submits an offer of proof as to the denied evidence.

S.D. CODIFIED LAWS § 19-9-3(2) (2011). Once the court makes a definitive ruling on the

record during an offer of proof, admitting or excluding the evidence, a party does not

need to renew objections or the offer during the remainder of the trial.

B) Making an offer. The Court may direct the making of an offer in question and answer

form, or may otherwise add to the record to properly reflect the nature of the offer of

proof. S.D. CODIFIED LAWS § 19-9-4 (2011).

Prior Accidents

Evidence of prior accidents may be admissible if it shows preparation, knowledge, or absence of

mistake. S.D. CODIFIED LAWS § 19-12-5 (2011). Prior accidents cannot be used to show a party

acted in conformity therewith in the present case. Id.; see also S.D. CODIFIED LAWS §§ 19-12-4,

-6, -7, -8 (2011).

Relationship to the Federal Rules of Evidence

South Dakota has adopted its own rules of evidence. Most of our statutes are based upon the

Federal Rules, but there are certain statutes that have significant modifications.

Seat Belt and Helmet Use Admissibility

A) Seat belt. Failure to use a seat belt is not admissible to show contributory negligence,

comparative negligence, or assumption of risk. S.D. CODIFIED LAWS § 32-38-4 (2011).

Spoliation

In South Dakota, there is a general rule that the intentional spoliation or destruction of evidence

relevant to a case raises a presumption, or inference, that the evidence would have been

unfavorable to the spoliator. State v. Engesser, 2003 SD 47, 661 N.W.2d 739. Such a

presumption arises, however, only where the spoliation was intentional and indicates fraud and a

desire to suppress the truth. It does not arise where the destruction was a matter of routine with

no fraudulent intent. Id.

2

0

Subsequent Remedial Measures

Evidence of subsequent remedial measures is not admissible to prove negligence or culpable

conduct in connection with the event. S.D. CODIFIED LAWS § 19-12-9 (2011). The statute does

not require exclusion when the evidence is offered for another purpose, such as proving

ownership, control, or feasibility of precautionary measures. The rule does apply to products

strict liability actions. First Premier Bank v. Kolcraft Enters., Inc., 2004 SD 92, 686 N.W.2d

430.

Use of Photographs

Photographs are admissible in South Dakota to prove the content of the photograph. S.D.

CODIFIED LAWS § 19-18-2 (2011). Duplicates are admissible unless: (1) a genuine question is

raised as to authenticity, or (2) it would be unfair to admit the duplicate in lieu of the original.

S.D. CODIFIED LAWS § 19-18-3.

DAMAGES

Caps on Damages

A) Medical malpractice. S.D. CODIFIED LAWS § 21-3-11 (2011) limits damages for

medical malpractice. Under this statute, in any action against a physician or other

licensed medical practitioner, or against the practitioner’s corporate, limited liability

partnership, or limited liability company, total general damages may not exceed five

hundred thousand dollars ($500,000.00). However, there is no limitation on special

damages that may be awarded. This statute applies separately to each cause of action, but

jointly to multiple parties in the same cause of action. Sander v. Geib, Elston, Frost

Professional Ass’n, 506 N.W.2d 107 (1993); Knowles v. United States, 829 F. Supp. 1147

(1993).

Calculation of Damages

A) In South Dakota, plaintiff seeking damages for personal injuries may recover various

damages, including: (1) aggravation of a pre-existing injury or condition, (2) disability

and disfigurement, (3) past and future pain and suffering, (4) loss of earnings prior to trial

and loss of earning capacity, (5) reasonable value of necessary caretaking expenses

required as a result of the injury, and (6) reasonable expense of past and future medical

care

B) Future medical expenses. Future medical expenses and loss of earnings are recoverable

when plaintiff can show such are reasonably certain to be suffered or incurred. Gilkyson

v. Wheelchair Express, 1998 SD 45, 579 N.W.2d 1; Degen v. Bayman, 241 N.W.2d 703

(S.D. 1976).

Available Items of Personal Injury Damages

2

1

A) Past medical bills. Plaintiffs may recover the reasonable value of necessary medical

care, treatment, and services received. Gilkyson, 579 N.W.2d 1.

B) Future medical bills. Plaintiffs may recover the reasonable value of necessary expense

of medical care, treatment, and services reasonably certain to be received in the future.

Id.

C) Increased risk of harm. In regard to real property, a landlord who by her own

affirmative acts or omissions negligently increases tenants’ risk of harm from crimes,

owes a duty to exercise reasonable care to protect those tenants from that increased risk.

Smith v. Ligow Constr. & Dev. Co., 2002 SD 37, ¶ 12, 642 N.W.2d 187, 191-92.

1) Loss of chance. South Dakota does not recognize a “loss of chance” claim. S.D.

CODIFIED LAW 9-1-1.1 (2011)

D) Disability and disfigurement. South Dakota recognizes the recovery of damages for

disability and disfigurement. S.D. PATTERN CIV. JURY INSTR. 30-04.

E) Loss of normal life. A plaintiff can recover loss of capacity of the enjoyment of life

experienced in the past and reasonably certain to be experienced in the future as a result

of the injury. S.D. PATTERN CIV. JURY INSTR. 30-05.

F) Past pain and suffering. Pain and suffering, mental anguish, and loss of capacity of the

enjoyment of life experienced in the past and reasonably certain to be experienced in

future as a result of injury are recoverable. Keegan v. First Bank of Sioux Falls, 470

N.W.2d 621 (1991).

G) Loss of society. South Dakota recognizes recovery for the loss of companionship and

society in wrongful death proceedings. Flagtwet v. Smith, 393 N.W.2d 452, 455 (S.D.

1986).

H) Lost income, wages, earnings. Plaintiffs can recover for past loss of earnings and future

loss of earnings.

1) Past loss of earnings. Past loss of earnings includes earnings plaintiff has lost, if

any, from any source from date of injury until date of trial. Byre v. Wieczorek,

190 N.W.2d 57 (S.D. 1971). Factors to be considered in determining measure of

damages for loss of earning capacity include what plaintiff earned before injury

and what plaintiff is capable of earning after injury, prior ability of plaintiff and

extent to which injuries affect plaintiff’s power to earn, age, life expectancy,

physical condition, occupation, skill, and habits of industry. Stormo v. Strong,

469 N.W.2d 816 (S.D. 1991).

2) Future loss of earnings. Future loss of earnings damages are reduced to present

value. Watkins v. Ebach, 291 N.W.2d 765 (S.D. 1980).

2

2

I) Wrongful death. A plaintiff can recover damages for wrongful death including the

pecuniary loss the plaintiff might reasonably have expected to receive from decedent had

decedent lived, bearing in mind decedent’s: (1) past contributions, (2) life expectancy, (3)

past earnings and likely future earnings, (4) consult, guidance, and aid decedent would

have given survivors, and (5) loss of companionship and protection decedent would

reasonably have given survivors. S.D. CODIFIED LAWS §§ 21-5-5, -7; see also In re

Estate of Howe, 2004 SD 118, 689 N.W.2d 22; Flagtwet v. Smith, 393 N.W.2d 452 (S.D.

1986).

1) Emotional anguish. The law does not allow plaintiff to recover for sorrow,

mental distress, grief suffered as a result of decedent’s death. Small v. McKennan

Hospital, 437 N.W.2d 194 (S.D. 1989).

2) Pain and suffering. A plaintiff can recover damages for conscious pain and

suffering of decedent prior to decedent’s death. Sander v. Gib, Elston, & Frost,

506 N.W.2d 107 (S.D. 1993).

3) Punitive damages. A plaintiff cannot recover punitive damages in a wrongful

death case as wrongful death is a statutory claim and South Dakota statutes do not

specifically authorize that recovery. Bethel v. Janis, 597 F. Supp. 56 (D.S.D.

1984).

Mitigation

Plaintiff cannot recover money for damages which could have been avoided by exercise of

reasonable care. Jurgensen v. Smith, 2000 SD 73, 611 N.W.2d 439. The burden of proof to

establish this is on the defendant. In addition, plaintiff cannot recover money for damage to

property or business which could have been avoided by exercise of reasonable diligence and

effort. Wasland v. Porter Auto & Marine, Inc., 1999 SD 134, 600 N.W.2d 904.

Punitive Damages

A) Punitive damages are available in an action for “breach of obligation not arising from

contract, where defendant is guilty of oppression, fraud, or malice, or in any case of

wrongful injury to animals committed intentionally or by willful and wanton misconduct,

in disregard of humanity.” S.D. CODIFIED LAWS § 21-3-2 (2011).

B) Standard. Punitive damages require proof of oppression, fraud, or malice, either actual

or presumed. Biegler v. Am. Family Mut. Ins. Co., 2001 SD 13, 621 N.W.2d 592.

C) Limits. A ratio of punitive damages to compensatory damages of 20 to 1 is within

permissible range under South Dakota law. Davis v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 906 F.2d 1206 (D.S.D. 1990).

D) Estates. Punitive damages are not recoverable against estate of deceased tortfeasor.

Olson-Roti v. Kilcoin, 2002 SD 131, 653 N.W.2d 254.

2

3

E) Insurability. South Dakota has no specific statute allowing punitive damages to be

covered under an insurance policy. The South Dakota Supreme Court has generally

indicated that it does not believe punitive damages can be covered under an insurance

policy, but it has declined to specifically enter that restriction. Dairyland Ins. Co. v.

Wyant, 474 N.W.2d 514 (S.D. 1991).

F) Excessiveness. In determining whether punitive damages are excessive, South Dakota

courts considers the amount awarded as compensatory damages, the nature of the wrong,

the intent of the wrongdoer, the wrongdoer’s financial condition, and the circumstances

surrounding the wrongdoer’s actions. Shaffer v. Edward D. Jones, 552 N.W.2d 801 (S.D.

1996).

Recovery and Pre- and Post-Judgment Interest

A) S.D. CODIFIED LAWS § 21-1-13.1 (2011) provides that any “person entitled to recover

damages . . . is entitled to recover interest thereon from the day the damage occurred.”

However, “prejudgment interest is not recoverable on future damages, punitive damages,

or intangible damages such as pain and suffering, emotional distress, loss of consortium,

injury to credit, reputation or financial standing, loss of enjoyment of life, or loss of

society and companionship.”

B) Also, the mere fact that a claim is disputed does not defeat the allowance of prejudgment

interest. Amert v. Ziebarth Const. Co., 400 N.W.2d 888 (S.D. 1987).

Recovery of Attorney’s Fees

Recovery of attorney’s fees is governed by S.D. CODIFIED LAWS § 15-6-54(d)(2) (2011).

A) Contractual or statutory. Attorney’s fees can only be awarded at the trial level if

provided by contract or if authorized by statute. Lord v. Hy-Vee Food Stores, 2006 SD

70, 720 N.W.2d 443.

B) Making claim. “Claims for attorneys’ fees and related nontaxable expenses shall be

made by motion unless the substantive law governing the action provides for the recovery

of such fees as an element of damages to be proved at trial.” Id. at § 15-6-54(d)(2)(A).

C) Timing. S.D. CODIFIED LAWS § 15-6-54(d)(2)(B) (2011) states:

Unless otherwise provided by statute or order of the court, the motion must be filed no

later than fourteen days after entry of judgment; must specify the judgment, and the

statute, rule, or other grounds entitling the moving party to the award; and must state the

amount or provide a fair estimate of the amount sought. If directed by court, the motion

shall also disclose the terms of any agreement with respect to fees to be paid for the

services for which claim is made.

D) Responses. S.D. CODIFIED LAWS § 15-6-54(d)(2)(C) (2011) states:

2

4

On request of a party or class member, the court shall afford an opportunity for adversary

submissions with respect to the motion. The court may determine issues of liability for

fees before receiving submissions bearing on issues of evaluation of services for which

liability is imposed by the court.

Settlement Involving Minors

A) Guardian ad litem. A guardian ad litem may be appointed to pursue or defend an action

for a minor. S.D. CODIFIED LAWS § 15-6-17(c) (2011). The guardian ad litem may settle

or compromise the minor’s claim with approval of court. Id.

B) Guardian or conservator. A guardian or conservator duly appointed under South

Dakota law may also settle a minor’s claim. S.D. CODIFIED LAWS § 29A-5-411(15)

(2011).

Taxation of Costs

A) The prevailing party is entitled to obtain taxation of costs. S.D. CODIFIED LAWS § 15-6-

54(d) (2011). The costs are limited to those specifically authorized by statute as being

taxable. S.D. CODIFIED LAWS § 15-17-37.

B) Procedure. Costs can be taxed upon application of the prevailing party. If no objection

to costs is filed within ten (10) days after application is served and filed, the clerk of

courts may tax the costs. If objections are timely filed, costs will be taxed in such

amount as may be ordered by the court. If costs are not applied for within thirty (30)

days of entry of judgment, they are waived. S.D. CODIFIED LAWS § 15-6-54(d) (2011).

This Compendium outline contains a brief overview of certain laws concerning various

litigation and legal topics. The compendium provides a simple synopsis of current law and

is not intended to explore lengthy analysis of legal issues. This compendium is provided for

general information and educational purposes only. It does not solicit, establish, or

continue an attorney-client relationship with any attorney or law firm identified as an

author, editor or contributor. The contents should not be construed as legal advice or

opinion. While every effort has been made to be accurate, the contents should not be relied

upon in any specific factual situation. These materials are not intended to provide legal

advice or to cover all laws or regulations that may be applicable to a specific factual

situation. If you have matters or questions to be resolved for which legal advice may be

indicated, you are encouraged to contact a lawyer authorized to practice law in the state for

which you are investigating and/or seeking legal advice.