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posted in Wilka, Welter & Ash LLP Law Blog.
Contributory and Comparative Negligence in South Dakota
One thing personal injury lawyers have to contend with in all 50 states is the problem of comparative negligence. Comparative negligence involves cases in which fault cannot be firmly established in one direction or the other. In other words, if an individual is partly to blame for an accident, it may be determined that the individual is owed a percentage of the damages. But South Dakota laws differ from the rest of the nation, in terms of this metric for assigning fault. For those in Sioux Falls, you’re going to want to find a personal injury lawyer that understands how the system works.
The metric for determining fault in South Dakota is based on a system of slight / gross levels of fault. If it can be determined that in individual in this is responsible for more than a “slight” amount of fault in a personal injury case, that they might not have any legal recourse to pursue action against another party. In the case of Wood v. City of Crooks, it was determined by the South Dakota Supreme Court that, rigorously defined, a fault level of over 30% precluded a plaintiff from pursuing action against a defendant in a personal injury suit.
Of course, the major problem is determining what constitutes fault of over 30%, and insurance company lawyers are very good at making it seem like any amount of fault successfully satisfies and exceeds that threshold. It ends up being that South Dakota is an extremely lucrative market for Insurance Companies that don’t like paying out claims. It’s then left to an arbiter or the court to determine what percentage of fault the plaintiff was responsible for, and not the extent to which the defendant was at fault.
“It’s a troublesome law,” says one injury lawyer from Sioux Falls. “If a defendant in a case is to blame, even partly for an injury incurred to someone, then they contributed to the injury. In other words, the injury would not have happened if the defendant hadn’t contributed to it some way. Nearly every other state assigns a percentage of blame that modifies the settlement figure, but in South Dakota, that blame could be used as a reason for dismissing your case entirely.”
“Obviously, there’s a number of folks out there that are interested in moving South Dakota toward a full comparative fault system,” he continued, “but so long as the law is on the books and that’s the way it works, we have to work with it.”
“The problem is that a law like this is not enforced consistently. One jury may find that if the defendant’s contributory negligence exceeds the plaintiffs, that the case should move forward. Another jury may determine that if the plaintiff has any contributory negligence, the plaintiff should be awarded nothing. It all ends up boiling down to the quality of your lawyer.”