Nov, 2017

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posted in Wilka, Welter & Ash LLP Law Blog.

Types of Damages Available for an Injury Claim and Limitations?

Types of Damages Available for an Injury Claim and Limitations?

If you have been in an accident or have been injured in some way by the willfulness or negligence of another, chances are you have significant expenses from medical bills as well as time off at work and possibly damage to property. These damages are “economic” and can be added up to a certain dollar amount. The goal of any personal injury claim or lawsuit is first to make you whole, or get you the money necessary to reimburse you for past out of pocket expenses, and expenses for evaluation, testing and treatment, and loss of time from work, and future loss of earnings, and future medical expenses.

In South Dakota, you are also entitled to compensation for “non-economic” damages such as the injury, pain and suffering, disability, emotional distress and loss of enjoyment of life. These damages are not in a certain amount and can vary depending on an individual’s circumstance and the type of injury. For instance, the loss of a limb in a car accident will cause a permanent disability for which the injured party will have to be compensated for the duration of his or her life. The law states that the “measure of damages should be enough to compensate for all the detriment proximately caused thereby, whether it could be anticipated or not.”

Additionally, South Dakota in some cases allows for “punitive” or “exemplary” damages. When a defendant is guilty of oppression, fraud, or malice, a jury may decide to punish that defendant by awarding punitive damages. (SDCL §21-3-2).

Another limitation to recovery of damages in a negligence action is “contributory negligence.” In South Dakota, a person who is injured may have their damages reduced or barred if their actions contributed to the injury. That reduction is determined by a comparative percentage of fault. In fact, the claim for damages may be barred completely if the actions of the injured party that contributed to their injury were more than “slight” compared to the defendants. A jury determines whether there was contributory negligence by the Plaintiff and whether the contributing negligence by the injured party was more than slight so as to bar any recovery. (SDCL §20-9-2).

South Dakota law states that you have three years to commence suit for personal injury damages and up to six years for damages to your personal property. (SDCL §15-2- 13 and 14).

If you have been injured, the lawyers at Wilka & Welter, LLP have the special knowledge, skill and experience to help you get the full compensation to which you are legally entitled.