SOUTH DAKOTA REFORMS

Employer Reference Liability: HB 1129 (1996).  Presumes good faith when employers provide employee references unless it is shown by “clear and convincing” evidence that the employer recklessly, knowingly, or with a malicious purpose, disclosed false or deliberately misleading information; or disclosed information subject to a nondisclosure agreement or information that is confidential under any federal or state law.

Joint and Several Liability Reform: SB 263 (1987): S.D. Codified Laws Ann. § 15-8-15.1.  Provides that “any party who is allocated less than 50% 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.”

Landowners and Trespassing Liability- H.B. 1087 (2011).  Based on the ALEC model Trespasser Responsibility Act, codifies existing South Dakota law with respect to trespassers by providing landowners immunity from liability for injuries to trespassers.  Provides that a landowner does not owe a duty of care a trespasser and is immune from liability for any injury to a trespasser, unless the physical injury or death was intentionally caused.  Provides an exception for physical injury or death caused to a child thirteen years of age or younger resulting from an artificial condition on the land, if the landowner knew or had reason to know that children of that age were likely to trespass at the location of the artificial condition or if the person knew or should have known that the condition involved an unreasonable risk to such children.  The landowner also is liable for a child's injury if the child did not realize the risk involved in the artificial condition, the utility to the person of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to the child, and the person failed to exercise reasonable care to eliminate the danger.

“Loss of Chance:” HB 1164 (2002).  Reverses the South Dakota Supreme Court's adoption of the “loss of chance” doctrine in a July 2000 decision.  That doctrine allows a plaintiff to recover for damages upon a showing by a majority of evidence that a doctor's negligence reduced a patient's chance of recovering from an illness or injury.  The amount of damages recoverable under the doctrine depends on the extent to which the doctor's negligence contributed to the loss. The previous law permitted a plaintiff to recover for all damages for loss of chance of recovery upon a showing that a greater than 50 percent chance existed that the doctor's negligence caused the plaintiff's loss of chance of recovery.  The previous law barred recovery upon a showing of a 50 percent or less chance of causation.    

Medical Liability Reform: Collateral Source Rule Reform: S.D. Codified Laws § 21-3-12.  Permits the admissibility of evidence of collateral source payments when the claimant alleges special damages that are or will be paid by insurance, are not subject to subrogation, and are not purchased privately or by government programs. 

Medical Liability Reform: Noneconomic Damages Reform: S.D. Codified Laws § 21-3-11.  Limits noneconomic damages in medical liability cases to $500,000.

Obesity Litigation Reform: HB 1282 (2004).  Exempts from civil liability manufacturers, sellers, trade associations, livestock producers, or retailers of any food or drink (as defined in Sec. 201(f) of 21 U.S.C. 321 (f)) when the claim is based on the individual’s weight gain, obesity, or a health condition related to weight gain or obesity, and the weight gain, obesity, or health condition results from the individual’s long-term consumption of a food or drink.  The provisions also apply to cases that are currently pending. 

Periodic Payment of Future Damages: S.D. Codified Laws § 21-3A-2.  Allows any party to elect the periodic payment of future damages exceeding $200,000 within 120 days of service of the complaint.

Periodic Payment of Future Damages: SB 281 (1986).  Mandates periodic payment of punitive damages when requested by a party to the lawsuit if future damages exceed $100,000.

Punitive Damages Reform: SB 280 (1986): S.D. Codified Laws Ann. § 21-1-4.1.  Requires a plaintiff to prove by “clear and convincing” evidence that a defendant acted with “willful, wanton, or malicious” conduct.