South Dakota

 
 
 
 
 
 
 
 
 
 
 
 
 
 

Statutes of Limitations (SOUTH DAKOTA)

Personal Injury - 3 yrs. [SDCL § 15-2-14]

Wrongful Death -3 yrs. (after death) [SDCL § 21-5-3]

Med Mal - 2 yrs. (after malpractice) [SDCL § 15-2-14.1]

Property Damage - 6 yrs. [SDCL § 15-2-13]

All Product Liability (all causes of action when Personal Injury, Death or Property Damage involved) - 3 yrs. (discovery ruled applies) [SDCL § 15-2-12.2]

Contracts (Oral and Written) - 6 yrs. SDCL § 15-2-13

Contracta for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [SDCL § 57A-2-725]

 

Discovery rule - applies in certain actions only.

 

 

 

Statutes of Repose (SOUTH DAKOTA)

Products - None

Construction of Real Property - 10 yrs. (may sue within 1 yr. if injury occurred during 10th year) [SDCL §§ 15-2A-3; 15-2A-5]

 

 

 

Claims Against Public/Gov. Entities (NOTE: “Sovereign Immunity” Limitations May Apply) (SOUTH DAKOTA)

Against All Gov. Entities - Notice within 180 days [SDCL § 3-21-2]

Suit Against State - Suit within 1 yr.  [SDCL § 21-32-2]

 

Comparative Negligence (SOUTH DAKOTA)

“Slight” comparative (the fact that Plaintiff may have been guilty of contributory negligence does not bar a recovery when Plaintiff’s contributory negligence is slight in comparison with Defendant’s negligence, but the damages must be reduced in proportion to the amount of Plaintiff’s contributory negligence) [SDCL § 20-9-2].

To determine whether Plaintiff’s negligence is more than slight, so that recovery is barred under contributory negligence statute, test is to compare it with negligence of all Defendants [Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997)]

 

 

 

Made Whole Doctrine (MWD) (SOUTH DAKOTA)

Passively applied and can be contractually modified by basic language.  Automobile insurer’s payment of claim for collision loss entitled it to reimbursement out of liability insurance proceeds, whether or not the insureds were made whole.  Automobile insurer’s right of subrogation after paying claim for collision loss was not restricted to instances where the insured had been made whole [Westfield Ins. Co., Inc. v. Rowe ex rel. Estate of Gallant, 631 N.W.2d 175 (S.D. 2001)]

 

 

 

Economic Loss Doctrine (ELD) (Assuming No Injury to Person or Damage to “Other Property”) (SOUTH DAKOTA)

Recognized/applied. Purely economic interests are not entitled to protection against mere negligence [Diamond Surface, Inc. v. State Cement Plant Com'n, 583 N.W.2d 155 (S.D. 1998)].  Economic losses arising out of commercial transactions are not recoverable under tort theories; when defect in component part damages the product into which the component was incorporated, economic loss as to product as whole are not losses to “other property” [City of Lennox v. Mitek Industries, Inc., 519 N.W.2d 330 (S.D. 1994)]

 

There are 2 potential exceptions.

 

First, ELD does not apply in cases involving professional services.  One who undertakes to provide professional services has a duty to the person for whom the services are performed to use such skill and care ordinarily exercised by others in the same profession; liability in tort for breach of that duty may arise as the result of negligence during the performance of the contract, even if there has been no breach of contract. [Kreisers Inc. v. First Dakota Title Ltd. Partnership, 852 N.W.2d 413 (S.D. 2014)]

 

Second, potentially there is a “public safety” exception to ELD (in order to provide a tort remedy for defective products whose risks were not foreseeable at the time of contracting [Northwestern Public Service v. Union Carbide Corp., 115 F.Supp.2d 1164 (D.S.D. 2000)]. Note: while the court discussed the “public safety” exception, it did not explicitly adopt said exception.

 

 

 

Certificate/Affidavit Of Merit Requirements (Claims Against Licensed Professionals) (SOUTH DAKOTA)

No requirements.

 

 

 

Landlord/Tenant Subrogation (SOUTH DAKOTA)

Case by case analysis.  Whether residential Tenants were co-insured with Landlord, is considered on case-by-case basis [American Family Mut. Ins. Co. v. Auto-Owners Ins. Co., 757 N.W.2d 584 (S.D. 2008)]

 

 

 

Reimbursement of Deductible(s) (SOUTH DAKOTA)

No law available.

 

 

 

MedPay and PIP (SOUTH DAKOTA)

MedPay and PIP - Subrogation allowed.

 

 

 

Liability of Parents (SOUTH DAKOTA)

$2,500 (+ court costs) for malicious and willful act (does not apply to damages proximately caused through the operation of a motor vehicle by the minor child) [SDCL § 25-5-15]

 

 

 

Joint Liability (SOUTH DAKOTA)

Joint and several liability (Plaintiff may recover all damages from any Defendant regardless of Defendant’s individual share of liability).  However, with respect to Defendants who are less than 50% at fault, there is a cap on their liability for no more than twice their proportionate share of fault [SDCL § 15-8-15.1]

 

 

Independent Cause of Action for Evidence Spoliation (SOUTH DAKOTA)

Not addressed/recognized.

Conflicts of Law (SOUTH DAKOTA)

Torts - Rights and liabilities of the parties are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties [Chambers v. Dakotah Charter, 488 N.W.2d 63 (S.D. 2003)].  Contracts - The parties to a contract may agree to be bound by the law of a particular state; however, such choice of law provisions on the governing law agreements are subject to limitation and invalidation by the overriding public policy of the forum state. Foreign laws will not be given effect if, by doing so, contract provisions would be enforced which would be contrary to the settled public policy of the domestic forum [Dunes Hospitality, L.L.C. v. Country Kitchen Int’l, Inc., 623 N.W.2d 484 (S.D. 2001)]