South Dakota




Statute of Limitations (SOUTH DAKOTA)


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

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

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

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


Discovery rule - applies in certain actions only.




Statute of Repose (Products) (SOUTH DAKOTA)







Admissibility of Expert Testimony (SOUTH DAKOTA)


Daubert test is followed.  If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case [State v. Johnson, 860 N.W.2d 235 (S.D. 2015)].





Causes of Action (SOUTH DAKOTA)


Strict Liability – South Dakota has adopted Rest. (2nd) of Torts, 402A.  One who sells any product in a defective condition unreasonably dangerous to the user (or to his property) is subject to liability for physical harm caused to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user without substantial change in the condition in which it is sold [Engberg v. Ford Motor Co., 205 N.W.2d 104 (S.D. 1973)].


Negligence – In a products liability action based on negligence, the proof must show that the manufacturer failed to exercise reasonable care [Jahnig v. Coisman, 283 N.W.2d 557 (S.D. 1979)].


Breach of Warranty – South Dakota has adopted the standard UCC express warranty [S.D. Codified Laws § 57A-2-313]; implied warranty of merchantability [S.D. Codified Laws § 57A-2-314]; implied warranty of fitness for a particular purpose [S.D. Codified Laws § 57A-2-313].  A seller’s warranty (express or implied) extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty [S.D. Codified Laws § 57A-2-318].


Definition of “Defect” (SOUTH DAKOTA)


A product is defective when it fails to perform reasonably and safely the function for which it was intended [Shaffer v. Honeywell, 249 N.W.2d 251 (S.D. 1976)].


A product is in a defective condition and unreasonably dangerous to the user if it is not reasonably fit for the ordinary and reasonably foreseeable purposes for which it was sold or manufactured and expected to be used [First Premier Bank v. Kolcraft Enters. (In re Boone) 686 N.W.2d 430 (S.D. 2004)].


A product is in a defective condition unreasonably dangerous to the user if it could have been designed to prevent a foreseeable harm without significantly hindering its function or increasing its price [First Premier Bank v. Kolcraft Enters. (In re Boone) 686 N.W.2d 430 (S.D. 2004)].

Also, see discussion below re: design defects.

Liability of Sellers (SOUTH DAKOTA)


No cause of action based on the doctrine of strict liability in tort may be asserted or maintained against any distributor, wholesaler, dealer or retail seller of a product which is alleged to contain or possess a latent defective condition unreasonably dangerous to the buyer, user, or consumer unless said distributor, wholesaler, dealer or retail seller is also the manufacturer or assembler of said product or the maker of a component part of the final product, or unless said dealer, wholesaler or retail seller knew, or, in the exercise of ordinary care, should have known, of the defective condition of the final product [S.D. Codified Laws § 20-9-9].


A seller may be strictly liable, but only if he knew (or through ordinary care should have known) of the defective condition of the product [Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909 (S.D. 1987)].


Defenses (SOUTH DAKOTA)     


Comparative Negligence – South Dakota follows “slight” comparative negligence (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, the test is to compare it with negligence of all Defendants [Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997)].  Contributory negligence and comparative negligence are not defenses in strict liability cases [Smith v. Smith, 278 N.W.2d 155 (S.D. 1979)].


Assumption of Risk – A defense to a claim of strict products liability. A plaintiff assumes the risk when he is aware the product is defective, knows the defect makes the product unreasonably dangerous, has reasonable opportunity to elect whether to expose himself to the danger, and nevertheless proceeds to make use of the product. A person is deemed to have appreciated the risk if it is the type of risk that no adult of average intelligence can deny. The plaintiff must have knowledge of the specific defect and risk posed rather than simple generalized knowledge that he has entered a zone of danger [Wangsness v. Builders Cashway, Inc., 779 N.W.2d 136 (S.D. 2010)].


Product Misuse – Misuse involves using a product for an unintended function or using the product for its intended purpose but in an improper manner.  Misuse by a user of a product will usually bar recovery [Herrick v. Monsanto Co., 874 F.2d 594 (8th Cir. S.D. 1989)].  However, misuse of a product will not necessarily relieve the manufacturer of liability under all circumstances [Zacher v. Budd Co., 396 N.W.2d 122 (S.D. 1986)].


Product Alteration/Modification – It is a defense.  However, not all substantial changes in the condition of a product will relieve the manufacturer of liability; there can be strict liability of a supplier even though the product is altered or changed if it is foreseeable that the alteration would be made and the change does not unforeseeably render the product unsafe [Zacher v. Budd Co., 396 N.W.2d 122 (S.D. 1986)].   



Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (SOUTH DAKOTA)


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 losses to the product as a whole are not losses to "other property" and are therefore not recoverable in tort [City of Lennox v. Mitek Industries, Inc., 519 N.W.2d 330 (S.D. 1994)].


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.



Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (SOUTH DAKOTA)


No specific defect need be shown if the evidence, direct or circumstantial, permits the inference that the accident was caused by a defect.  Plaintiff has the burden of showing that the defect existed when the product left the manufacturer's hands. This burden may be satisfied by circumstantial evidence [Shaffer v. Honeywell, 249 N.W.2d 251 (S.D. 1976)].


A plaintiff may use circumstantial evidence to prove that a defective product caused an injury, and that the defect existed when the product left the defendant's control. As part of the burden of showing the defect existed when the product left the defendant's control, a plaintiff must show the product reached the plaintiff without any alterations or modifications which defeat the safety which is engineered into that product [O'Neal v. Remington Arms Co., L.L.C., 803 F.3d 974 (8th Cir. S.D. 2015)].


Design Defects (SOUTH DAKOTA)                                                                                                


While a manufacturer has a duty to design a product that is reasonably safe for its foreseeable use, it is not required to design the “best possible product,” and proof that technology existed, which if implemented could feasibly have avoided a dangerous condition, does not alone establish a defect [Robinson v. S.D. Brandtjen & Kluge, Inc., 500 F.3d 691 (8th Cir. S.D. 2007)].


According to South Dakota Supreme Court, the state utilizes the risk/utility test.  South Dakota uses the following jury instruction: a product is in a defective condition unreasonably dangerous to the user if it could have been designed to prevent a foreseeable harm without significantly hindering its function or increasing its price [First Premier Bank v. Kolcraft Enters. (In re Boone), 686 N.W.2d 430 (S.D. 2004)].


However, a federal court observed that “it is unclear whether South Dakota has adopted, or would adopt, the [risk-utility test], in addition to the consumer expectations test of section 402A, for determining the existence of a defective condition” [Robinson v. S.D. Brandtjen & Kluge, Inc., 500 F.3d 691 (8th Cir. S.D. 2007)].


Industry standards are merely a minimal standard that may be considered in a negligence action [Zacher v. Budd Co., 396 N.W.2d 122 (S.D. 1986)].


Conformity with state of the art – In any product liability action based upon negligence or strict liability, whether the design, manufacture, inspection, testing, packaging, warning, or labeling was in conformity with the generally recognized and prevailing state of the art existing at the time the specific product involved was first sold to any person not engaged in the business of selling such a product, may be considered in determining the standard of care, whether the standard of care was breached or whether the product was in a defective condition or unreasonably dangerous to the user [S.D. Codified Laws § 20-9-10.1].



Failure to Warn (SOUTH DAKOTA)


Where a manufacturer or seller has reason to anticipate that danger may result from a particular use of his product, and he fails to give adequate warning of such a danger, the product sold without such warning is in a defective condition within the strict liability doctrine [Jahnig v. Coisman, 283 N.W.2d 557 (S.D. 1979)].


To prevail on a claim for strict liability (failure to warn), a plaintiff must establish that: (1) a danger existed associated with a foreseeable use of the product; (2) an inadequate warning was given regarding the danger; (3) as a result of the inadequate warning, the product was rendered defective and unreasonably dangerous; (4) the defective and unreasonably dangerous condition existed at the time it left the control of the manufacturer; (5) the product was expected and did reach the user without a substantial unforeseeable change in the condition that it was in when it left the manufacturer's control; and (6) the defective condition was the legal cause of his injuries [Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397 (S.D. 2007)].


A federal appellate court has opined that it is likely that South Dakota would adopt the heeding presumption (the presumption that a reasonable person would act according to an adequate warning) [Schilf v. Eli Lilly & Co., 687 F.3d 947 (8th Cir. S.D. 2012)].


Independent Cause of Action for Evidence Spoliation (SOUTH DAKOTA)


Not addressed/recognized.