Individual States 

SOUTH DAKOTA

ASSUMPTION OF RISK

Assumption of risk is available as a defense in strict liability and negligence cases to bar recovery. Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909 (1987) .

CAPS ON NONECONOMIC DAMAGES

There are no exclusive Products Liability statutes under this category.

COLLATERAL SOURCE RULE

Total or partial compensation received by an injured party from a collateral source, wholly independent of the wrongdoer, does not operate to reduce the damages recoverable from the wrongdoer. Moore v. Kluthe & Lane Ins. Agency, Inc., 234 N.W.2d 260 (1975) .

COMPARATIVE FAULT

Contributory negligence is not a defense in strict liability cases and will not bar recovery. Smith v. Smith, 278 N.W.2d 155 (S.D. 1979) .

In all actions brought to recover damages for injuries to a person or to that person's property caused by the negligence of another, except in strict liability, the fact that the plaintiff may have been guilty of contributory negligence does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence. S.D. Codified Laws §20-9-1 .

ECONOMIC LOSS

Economic losses are not recoverable under the tort theories of strict liability and negligence. However, damages to "other property" and damages for personal injuries are recoverable in tort. "Other property" is defined as damage to property collateral to the product itself. City of Lennox v. Mitek Industries, Inc., 519 N.W.2d 330 (S.D.1994) .

A federal court in South Dakota has predicted that the South Dakota Supreme Court would not apply the economic loss doctrine to claims of intentional misinterpretation, fraudulent concealment, deceit and deceptive trade practices. Northwestern Public Service v. Union Carbide Corp., 115 F.Supp.2d 1164 (D.S.D. 2000) .

JOINT & SEVERAL LIABILITY

If the court enters judgment against any party liable on the basis of joint and several liability, any party who is allocated less than fifty percent of the total fault allocated to all the 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 .

PUNITIVE DAMAGES

Punitive damages are permissible in actions not arising out of contract for injury to person or property through oppression, fraud, malice, or reckless disregard of plaintiff's rights. S.D. Codified Laws §21-3-2 .

Punitive damages will be allowed based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against. S.D. Codified Laws §21-1-4.1 .

RIGHT TO CONTRIBUTION

The right of contribution exists among joint tortfeasors, but a joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof. S.D. Codified Laws §§15-8-12 and 15-8-13 .

A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement. S.D. Codified Laws §15-8-14 .

When there is such a disproportion of fault among joint tortfeasors as to render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares. If the court enters judgment against any party liable on the basis of joint and several liability, any party who is allocated less than fifty percent of the total fault allocated to all the 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 and 15-8-15.1 .

The recovery of a judgment by the injured person against one joint tortfeasor does not discharge the other joint tortfeasors. S.D. Codified Laws §15-8-16 .

SPECIAL DEFENSES

Any seller of a product which is alleged to contain or possess a latent defective condition unreasonably dangerous to the end-user, is immune from strict liability -- unless the seller is also the manufacturer or assembler of the product, or the maker of a component part of the final product -- or unless the seller knew, or, in the exercise of ordinary care, should have known, of the defective condition of the final product. Nothing in this section will limit any other cause of action from being brought against any seller of a product. S.D. Codified Laws §20-9-9 .

No manufacturer or seller of a product may be held liable for damages for personal injury, death or property damage sustained by reason of strict liability where a proximate cause of the injury, death or damage was an alteration or modification of such product. S.D. Codified Laws §20-9-10 .

STATUTE OF LIMITATION

An action against a manufacturer, lessor or seller of a product, regardless of the substantive legal theory, for or on account of personal injury, death or property damage caused may be commenced only within three years of the date when the personal injury, death or property damage occurred, became known or should have become known to the injured party. S.D. Codified Laws §15-2-12.2 .

Every action for wrongful death shall be commenced within three years after the death of such deceased person. S.D. Codified Laws §21-5-3 .

Actions for breach of warranty must be commenced within four years. S.D. Codified Laws §57A-2-725 .

STATUTES OF REPOSE

There is no statute of repose for product liability actions in South Dakota.

STRUCTURED SETTLEMENT

Provides an election of periodic payment by a party to an action for bodily injury. S.D. Codified Laws §21-3A-1, et seq .